in the Court of Appeals 20 April 2017.
by defendant from judgment entered 1 April 2016 by Judge
Phyllis M. Gorham in New Hanover County No. 13 CRS 57210
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.
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.
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.
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
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."
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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).
Standard of Review and Defendant's Preservation of
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)).
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).
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.
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
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
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.
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.
Denial of Defendant's Motion to Suppress
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
Fourth Amendment Protections
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
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.
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).
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)).
conclusion of the suppression hearing, the trial court
recited the evidence presented, as detailed above, and
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.
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.
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
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.___, ...