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State v. McPhaul

Court of Appeals of North Carolina

November 7, 2017


          Heard in the Court of Appeals 22 February 2017.

         Appeal by defendant from judgments entered 2 October 2015 by Judge James M. Webb in Hoke County Superior Court, Nos. 12 CRS 51350-52, 13 CRS 954.

          Attorney General Joshua H. Stein, by Assistant Attorney General William P. Hart, Jr., for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for defendant-appellant.

          CALABRIA, JUDGE.

         Juan Foronte McPhaul ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of attempted first degree murder; assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWIKISI"); robbery with a dangerous weapon; conspiracy to commit robbery with a dangerous weapon; and assault inflicting serious bodily injury. After careful review, we conclude that defendant received a fair trial, free from prejudicial error. However, because the trial court was not authorized to enter judgments and sentence defendant for two assaults based on the same underlying conduct, we vacate the trial court's assault inflicting serious bodily injury judgment in 13 CRS 954.

         I. Background

         Late in the evening on 3 August 2012, Domino's Pizza driver Tyler Lloyd ("Lloyd") delivered two pizzas and a box of chicken wings to a residence on O'Bannon Drive in Raeford, North Carolina. When Lloyd arrived, a man waiting on the porch of the residence told Lloyd that his cousin had placed the delivery order and would return momentarily to pay for the food. As Lloyd returned to his truck to wait, a second, larger man approached him from the yard. The men engaged in small talk beside Lloyd's truck while Lloyd waited for payment.

         After five minutes passed, Lloyd said that he needed to return to Domino's. The larger man offered to pay for the pizzas. However, when Lloyd reached into his truck for the food, he was hit on the head from behind and fell to the ground. When Lloyd attempted to stand, the larger man hit him in the right shin with a metal baseball bat, and Lloyd fell back to the ground. As Lloyd extended his arm to protect himself from another blow, the bat connected with his hand and struck him hard in the face. Lloyd blacked out. When he regained consciousness, Lloyd discovered the men, the food, and his cell phone were gone. Since he could not call law enforcement, Lloyd attempted to drive back to Domino's. Shortly after he started driving, however, Lloyd began to feel as though he might lose consciousness again, and he pulled over.

         When Lloyd failed to return to Domino's, at 12:34 a.m. on 4 August 2012, his manager called the Hoke County Sheriff's Department ("HCSD") to report the missing driver. Lloyd's manager provided the O'Bannon Drive address as the destination for his last delivery, and HCSD deputies canvassed the area. Although they did not find Lloyd, on the pavement, they discovered a pile of loose change; a 2011 Hoke County High School class ring; a Domino's Pizza delivery sticker; and a large pool of reddish-brown liquid that appeared to be fresh blood. The deputies contacted Detective Sergeant Donald E. Schwab, Jr. ("Detective Schwab") to request assistance with the investigation.

         At around 1:30 a.m. on 4 August 2012, HCSD deputies found Lloyd sitting in his truck, approximately one-quarter mile away from the O'Bannon Drive residence. Lloyd was very disoriented and was bleeding from severe lacerations to his head and right leg. When Detective Schwab arrived, Lloyd told him that two black males with dreadlocks, wearing black clothing, had stolen his cell phone and pizzas and beaten him with a metal baseball bat. Lloyd told Detective Schwab that one of the men was "larger framed" and the other man was "smaller framed [and] shorter." Emergency Medical Services subsequently arrived and transported Lloyd to the hospital, where he received emergency brain surgery for his injuries.

         At 3:45 a.m. on 4 August 2012, HCSD Captain John Kivett ("Captain Kivett") interviewed the Domino's manager regarding the details of the O'Bannon Drive delivery order. Subsequently, the manager obtained a printout confirming that the order was placed online. Domino's captured and provided the IP address to investigators.

         At approximately 4:00 a.m. on 4 August 2012, investigators conducted a canine track from the yard at the O'Bannon Drive residence. After tracking through a hole in the fence, the canine followed a dirt path into the adjacent neighborhood of Puppy Creek Mobile Home Park, where the canine lost the track at the nearby intersection of Springer Drive and Dalmatian Drive. That afternoon, investigators traced the IP address provided by Domino's to a residence on Springer Drive in the Puppy Creek Mobile Home Park.

         At 8:15 p.m. on 4 August 2012, Captain Kivett met with a confidential source of information ("CSI"). The CSI told Captain Kivett that at approximately 11:30 p.m. on 3 August 2012, he observed two men, wearing black shirts and blue jeans, running from the intersection of Springer Drive and Dalmatian Drive, heading toward 217 Springer Drive. The CSI described one of the men he saw as "a tall large frame black male [with] long dreadlocks, " and the other as "a short slim black male with dreadlocks." In addition, one man was holding a cell phone, and the other man was carrying what appeared to be a large duffle bag, similar to the type used for pizza delivery. The larger man entered 217 Springer Drive through the front door, but the CSI lost sight of the smaller man when he disappeared behind another residence.

         At approximately 9:00 p.m. on 4 August 2012, Captain Kivett investigated the Springer Drive residence associated with the IP address used for the Domino's order. None of the occupants matched Lloyd's description of his assailants. However, Captain Kivett determined that the home's wireless connection was unsecured and accessible to any wireless device within range.

         With all of this information, Detective Schwab applied for a warrant for 217 Springer Drive, based upon probable cause that a search of the residence would yield evidence of Lloyd's assault. At 11:05 p.m. on 4 August 2012, HCSD obtained a search warrant for 217 Springer Drive. In executing the search warrant, HCSD seized two Domino's pizza boxes; a Domino's chicken wing box; printed Domino's delivery labels bearing the O'Bannon Drive address; a black OtterBox cell phone cover; a large black t-shirt; and various forms of identification establishing defendant as a resident of 217 Springer Drive. In addition, HCSD discovered an aluminum baseball bat underneath the residence next door.

         On 7 August 2012, HCSD arrested defendant and charged him with attempted first degree murder, AWDWIKISI, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. On 2 December 2013, a Hoke County grand jury returned bills of indictment formally charging defendant with these offenses, as well as assault inflicting serious bodily injury. Prior to trial, defendant filed a motion to suppress all evidence obtained from the search of his residence, claiming that the warrant lacked probable cause. Following an evidentiary hearing, the trial court denied defendant's motion.

         On 29 September 2015, a jury trial commenced in Hoke County Criminal Superior Court. Defendant moved to dismiss all charges at the close of the State's evidence and at the close of all of the evidence. The trial court denied both motions. On 2 October 2015, the jury returned verdicts finding defendant guilty of all charges. The trial court ordered defendant to serve the following consecutive sentences in the custody of the North Carolina Division of Adult Correction: 238-298 months for attempted first degree murder; 88-118 months for AWDWIKISI; and 97-129 months for robbery with a dangerous weapon. In addition, the trial court imposed concurrent sentences of 38-58 months for conspiracy to commit robbery with a dangerous weapon and 25-39 months for assault inflicting serious bodily injury. Defendant appeals.

         II. Analysis

         A. Denial of Defendant's Motion to Suppress

         Defendant first challenges the trial court's denial of his motion to suppress, contending that the search warrant affidavit failed to establish the existence of probable cause. We disagree.

         Our review of a trial court's denial of a motion to suppress is "strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). We review the trial court's conclusions of law de novo. State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

         The protection against unreasonable searches and seizures is ingrained within our federal and state constitutions. See U.S. Const. amend. IV (protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and providing that "no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized"); N.C. Const. Art. I sec. 20 (prohibiting the issuance of "[g]eneral warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence").

         In light of these provisions, courts "have expressed a strong preference for searches conducted pursuant to a warrant." State v. McKinney, 368 N.C. 161, 164, 775 S.E.2d 821, 824 (2015) (citations and internal quotation marks omitted). Pursuant to N.C. Gen. Stat. § 15A-244 (2015), all search warrant applications must be made in writing upon oath or affirmation and must contain:

(1) The name and title of the applicant; and
(2) A statement that there is probable cause to believe that items subject to seizure under [ N.C. Gen. Stat. §] 15A-242 may be found in or upon a designated or described place, vehicle, or person; and
(3) Allegations of fact supporting the statement. The statements must be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched; and
(4) A request that the court issue a search warrant directing a search for and the seizure of the items in question.

         The facts set forth in the affidavit "must be such that a reasonably discreet and prudent person would rely upon them before they will be held to provide probable cause justifying the issuance of a search warrant." State v. ...

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