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State v. Hester

Court of Appeals of North Carolina

July 18, 2017

STATE OF NORTH CAROLINA
v.
DARIUS TERRELL HESTER

          Heard in the Court of Appeals 20 April 2017.

         Appeal by defendant from judgment entered 1 April 2016 by Judge Phyllis M. Gorham in New Hanover County No. 13 CRS 57210 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for defendant-appellant.

          TYSON, Judge.

         Darius Terrell Hester ("Defendant") appeals from his conviction of felonious possession of a stolen firearm following the trial court's denial of his motion to suppress. Due to Defendant's failure to object at trial, this issue is properly before us solely upon plain error review. Defendant has failed to carry his burden to show error or plain error in the jury's verdict or the judgment entered thereon.

         I. Background

         New Hanover County Sheriff's Deputy Joshua Cranford was familiar with the Rockhill Road area in Wilmington, as he regularly patrolled that area as part of his patrol route. He described the area as having a history of criminal gang and drug activity. Deputy Cranford testified a recent home invasion had occurred in the area and numerous "break-ins" in the past. He had personally made one arrest for home invasion. He was unable to specifically recall making any arrests for breaking and entering or drug activity in the area. Deputy Cranford testified that officers generally share information with each other about areas where criminal activity is afoot and crimes are committed.

         New Hanover County Sheriff's Detective Kenneth Murphy had served as a law enforcement officer for seventeen years. He also testified about criminal activity in the Rockhill Road area. Three homicides occurred in the neighborhood between 1999 and 2003. Detective Murphy testified the area was "known for" breaking and entering, drug activity, and drive-by shootings. He was unaware of when the most recent breaking and entering crimes had occurred prior to 16 August 2013.

         At around 10:30 a.m. on Friday, 16 August 2013, Deputy Cranford was patrolling the area in his marked patrol car and turned onto Rockhill Road. He was unaware of whether any crimes had been committed in the area that morning or the previous night. After driving approximately one-half mile on Rockhill Road, Deputy Cranford noticed a car was pulled over toward the side of the road, but was partially parked on the travel lane of the roadway. He initially believed the car might be disabled. As Deputy Cranford's marked patrol car approached the front of the parked vehicle and came within fifty yards of the vehicle, it moved and the driver drove away "in a normal fashion."

         When the car pulled away, Deputy Cranford "saw [Defendant] walk away from the vehicle and cross the road in front of [him] and continue up Rockhill Road in the opposite direction." Deputy Cranford did not know whether Defendant had gotten out of the car or had been speaking with anyone inside the car.

         Deputy Cranford also testified he believed the car had pulled away and Defendant had crossed the road in reaction to his arrival and presence. He further testified he did not know "if [Defendant] was lost, " or whether a drug deal had just occurred. He believed Defendant may have been dropped off on the road in order to break into people's homes.

         Deputy Cranford testified he "wanted to get outside and investigate and make sure everything was okay, " because of the "area that we were in" and the fact that Defendant walked from the car and the car pulled away as he approached. Deputy Cranford turned his vehicle around, activated his blue lights, and stopped Defendant.

         Deputy Cranford exited his patrol car and asked Defendant whether he possessed any drugs or weapons. Defendant responded that he did not. Deputy Cranford asked Defendant for identification. Defendant did not possess a photo identification, but gave Deputy Cranford his name and date of birth. Defendant was initially polite and cooperative. He asked Deputy Cranford if he had done anything wrong. Deputy Cranford responded that he had not done anything wrong.

         Deputy Cranford asked Defendant to remain at the front of his patrol car while he sat inside his patrol car. Deputy Cranford contacted the Sheriff's dispatcher to determine whether Defendant had any outstanding arrest warrants.

         Defendant walked from the front of the patrol car to the driver's side and "stood [at] the entrance of the car door, " which made Deputy Cranford "uncomfortable." Deputy Cranford instructed Defendant to return to the front of the patrol car. Moments later, Defendant "tried to do the same thing again." At that point, Deputy Cranford exited his patrol car, stood at the front of the car with Defendant, and awaited a response from the Sheriff's dispatcher. The Sheriff's dispatcher informed Deputy Cranford that Defendant had no outstanding warrants, but that he was "known to carry" a concealed weapon based upon a prior charge for carrying a concealed weapon.

         Deputy Cranford again asked Defendant whether he possessed a weapon. Defendant lied and responded that he did not. At that point, Deputy Cranford observed a slight bulge under Defendant's shirt. Defendant became confrontational when Deputy Cranford asked him to lift his shirt. Defendant lifted his shirt and pulled a handgun from his waistband. Deputy Cranford testified that Defendant pointed the gun at him and pulled the trigger. He heard the hammer click, but the weapon did not discharge.

         Deputy Cranford testified he backed up and drew his weapon. He began to fire shots at Defendant, who fled while still carrying his handgun. Deputy Cranford chased Defendant down a dirt path and lost sight of him as Defendant rounded a corner. Deputy Cranford turned the corner and saw Defendant lying on the ground. Defendant had been shot in the shoulder. Defendant told Deputy Cranford he had dropped his gun. Deputy Cranford placed Defendant under arrest.

         Deputy Cranford recovered Defendant's handgun in the dirt path about twenty yards away. The recovered gun was found to be loaded with a full clip and it had been reported as stolen from a home in Wilmington in 2013. At trial, Defendant testified he had bought the gun "from off the streets" and that he knew such guns were typically stolen.

         Defendant was indicted and tried on the charges of attempted murder and possession of a stolen firearm. Defendant testified he did not point the gun at Deputy Cranford or pull the trigger. He stated he was attempting to hand Deputy Cranford the gun, with the barrel pointed toward the ground.

         Defendant testified Deputy Cranford reacted with shock and reached for his weapon. Defendant ran. He stated he was holding the handgun when he ran, but threw it prior to being shot. Defendant was acquitted of the attempted murder charge. The jury found him to be guilty of possession of a stolen firearm. Defendant appeals.

         II. Jurisdiction

         Jurisdiction lies in this Court from final judgment of the superior court entered upon the jury's verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2015).

         III. Standard of Review and Defendant's Preservation of Error

         "The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law." State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994)).

         Defendant's motion to suppress was heard prior to trial. The trial court denied the motion immediately following the presentation of evidence and arguments of counsel. Defendant concedes defense counsel failed to object when the evidence resulting from the stop, and particularly the stolen handgun, was offered at trial. The admission of the handgun evidence must be reviewed for plain error. State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000) (holding a motion in limine is insufficient "to preserve for appeal the question of admissibility of evidence if the defendant did not object to the evidence at the time it was offered at trial"), cert. denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001).

         At trial, Defendant failed to object to numerous references to his possession of the stolen handgun, or to object to the tender and admission of the handgun into evidence. During his testimony, Defendant acknowledged he had purchased and possessed the stolen handgun, but denied pointing it at Deputy Cranford or pulling the trigger.

         The State argues Defendant elicited the same evidence and testified at trial, and is not entitled to plain error review, because he invited the error. See N.C. Gen. Stat. § 15A-1443(c) (2015) ("A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct."). The State cites State v. Gobal, 186 N.C.App. 308, 319, 651 S.E.2d 279, 287 (2007), aff'd per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008) ("Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.").

         Once the trial court denied Defendant's motion to suppress based upon lack of reasonable suspicion for the stop, Defendant was required to defend against the charges of attempted murder and felonious possession of a stolen firearm. He defended the charges by testifying about the circumstances surrounding his possession of the stolen handgun. This testimony was subject to cross-examination by the State.

         While defending against the attempted murder charge, Defendant testified to explain his actions of surrendering the weapon and stated he did not point or fire his gun at Deputy Cranford. A defendant does not waive an objection to evidence by seeking "to explain, impeach or destroy its value." State v. Badgett, 361 N.C. 234, 246, 644 S.E.2d 206, 213 (citation omitted), cert. denied, 552 U.S. 977, 169 L.Ed.2d 351 (2007). Defendant's appeal from the denial of his motion to suppress is properly before us on plain error review, and not invited error. See id.

         "Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted). This burden rests upon Defendant. See id.

         IV. Denial of Defendant's Motion to Suppress

         Defendant's sole argument on appeal asserts the trial court erred by denying his motion to suppress the evidence obtained from the stop. Defendant argues Deputy Cranford did not possess a reasonable suspicion that he was involved in criminal activity when Deputy Cranford initially stopped and questioned him.

         A. Fourth Amendment Protections

         The United States and North Carolina Constitutions protect against unreasonable searches and seizures. U.S. Const. amend. IV; N.C. Const. art. I, § 20. The protections of the Fourth Amendment apply "to seizures of the person, including brief investigatory detentions." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994) (citing Reid v. Georgia, 448 U.S. 438, 440, 65 L.Ed.2d 890, 893 (1980)). A "seizure" has occurred under the Fourth Amendment when an officer uses a "show of authority" to stop a citizen. Florida v. Royer, 460 U.S. 491, 501-02, 75 L.Ed.2d 229, 239 (1983). "[T]he crucial test [to determine if a person is seized] is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Florida v. Bostick, 501 U.S. 429, 437, 115 L.Ed.2d 389, 400 (1991) (citation and quotation marks omitted).

         Here, Deputy Cranford turned his vehicle around and activated his blue lights after arrival upon the scene. Defendant stopped walking and voluntarily talked with Deputy Cranford. Defendant failed to provide a photo identification to the officer, but provided his name and address. The trial court properly analyzed this encounter as a stop. The State does not contest that Defendant was seized to implicate the Fourth Amendment. A reasonable person would not have felt at liberty to ignore Deputy Cranford's presence and the use of blue lights on his marked vehicle, and continue to walk away. See id.

         To survive Fourth Amendment scrutiny, 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) (citations omitted). As applied by the Supreme Court of North Carolina: "A court must consider the totality of the circumstances-the whole picture in determining whether a reasonable suspicion exists" to justify an officer's investigatory stop. State v. Otto, 366 N.C. 134, 138, 726 S.E.2d 824, 828 (2012) (citation and quotation marks omitted).

         "The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training." Watkins, 337 N.C. at 441-42, 446 S.E.2d at 70 (citing Terry v. Ohio, 392 U.S. 1, 21-22, 20 L.Ed.2d 889, 906 (1968)); State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L.Ed.2d 143 (1979). "The only requirement is a minimal level of objective justification, something more than an 'unparticularized suspicion or hunch.'" Watkins, 337 N.C. at 442, 446 S.E.2d at 70 (quoting U.S. v. Sokolow, 490 U.S. 1, 7, 104 L.Ed.2d 1, 10, (1989)).

         At the conclusion of the suppression hearing, the trial court recited the evidence presented, as detailed above, and stated:

The Court concludes as a matter of law that the Court takes into consideration the officer's personal observations at the time that he observed a vehicle and the defendant on Rockhill Road, that it was - that it is a high crime area where several breaking and enterings, drug activity, and drive-by shootings have occurred in the past; and that Deputy Cranford did not have all this information himself as he had not himself made several arrests for breaking and enterings or the activity in that area, that the officers shared this information and that Deputy Cranford would receive updates of information about the area in which he was patrolling on a regular basis when he was on duty.
Therefore, the Court does find that the officer did have reasonable suspicion to believe that a crime was being committed at the time that he stopped the defendant on Rockhill Road. Therefore, the Court is going to deny the motion to suppress the evidence.

         C. Intervening Circumstance

         Even if this Court were to accept Defendant's argument that Deputy Cranford's initial stop of Defendant was not based upon a reasonable suspicion that Defendant was involved in criminal activity, the trial court's ultimate ruling on Defendant's motion to suppress to allow admission of the stolen handgun is properly upheld.

         Viewed in the light most favorable to the State and under plain error review, evidence presented to the trial court at the hearing on Defendant's motion to suppress showed the recovered stolen handgun and all evidence related to the stolen handgun were obtained after Defendant's commission of a separate crime: pointing a loaded, stolen gun at Deputy Cranford and pulling the trigger. At the suppression hearing, the trial court expressly found Defendant pointed the gun at the officer and pulled the trigger.

         Evidence discovered as a result of an illegal search or seizure is generally excluded at trial. See Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L.Ed.2d 441, 455 (1963). "[T]he exclusionary rule encompasses both the 'primary evidence obtained as a direct result of an illegal search or seizure and, relevant here, evidence later discovered and found to be derivative of an illegality, ' the so-called 'fruit of the poisonous tree.'" Utah v. Strieff, ___ U.S.___, ...


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