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State v. Burwell

Court of Appeals of North Carolina

December 5, 2017

STATE OF NORTH CAROLINA
v.
MARK BURWELL, Defendant.

          Heard in the Court of Appeals 7 June 2017.

         Appeal by Defendant from judgments entered 26 May 2016 by Judge Walter H. Godwin, Jr. in Johnston County Superior Court. Nos. 14CRS55454, 14CRS1967.

          Attorney General Joshua H. Stein, by Assistant Attorney General Ashish K. Sharda, for the State.

          Meghan Adelle Jones, for Defendant-Appellant.

          MURPHY, Judge.

         Mark Burwell ("Defendant") appeals from his judgments for assault on a law enforcement officer inflicting serious bodily injury and attaining habitual felon status. On appeal, Defendant argues the following: (1) the trial court erred by denying his Motion to Dismiss because he only used the amount of force reasonably necessary to resist an unlawful arrest; (2) the trial court erred or plainly erred by denying his Motion to Suppress and admitting evidence obtained as a result of an unlawful arrest; (3) the trial court erred or plainly erred by failing to instruct the jury on the right to resist an unlawful arrest; and (4) the trial court erred or plainly erred by failing to instruct the jury on the right to defend oneself from excessive force by a law enforcement officer.

         After careful review, we conclude Defendant received a fair trial, free from error.

         Background

         At approximately 4 a.m. on 12 October 2014, Officer Sean Cook ("the Officer") arrived at Kay Drive in Smithfield, in reference to a 911 call reporting a suspicious person who refused to leave the apartment complex. Kay Drive and the apartments therein are subject to Section 8 housing. Section 8 of the United States Housing Act of 1937, as amended in 1974, established "Section 8, " the federally subsidized housing assistance payments program. See 42 U.S.C. § 1437f (2015). The Officer testified that Smithfield police officers have an agency agreement with Kay Drive, wherein they have the authority to remove trespassers from the property, as that section and the apartments therein are subject to Section 8 housing.

         The Officer was given information that the suspicious person was a male in his thirties wearing all black, and could be found near or around an older model, black truck. Upon his arrival, the Officer noticed Defendant, a male wearing all black clothing, standing in front of an older model, black truck. The Officer determined Defendant matched the description given to him by dispatch. He approached Defendant, and saw a beer can in Defendant's hand. The Officer asked Defendant to walk towards him, and Defendant complied. Seeing Defendant no longer held the beer can, the Officer told Defendant to retrieve the can and dispose of it. Defendant again complied. The Officer and Defendant spoke "at length[, ]" and he could smell the strong odor of an alcoholic beverage emitting from Defendant. Upon request, Defendant provided the Officer with his identification.

         Investigating further, the Officer, accompanied by Defendant, went to the door of the individual who made the 911 call. The Officer spoke with the woman who answered the door, who he testified he believed to be the caller. The Officer explained, to her and to Defendant, that Defendant was trespassing on the property. Defendant "appeared to understand that he was going to be trespassing [sic] the property." "Based on the totality of the circumstances and his impairment" the Officer then asked Defendant how he was going to get home. Defendant had no clear answer, and "[h]is story constantly changed." The Officer decided to "detox"[1] Defendant. He informed Defendant that Defendant was being "trespassed[, ]" and, although not under arrest, he was going to be taken for a detox.

         Preparing for transport, the Officer attempted to handcuff Defendant, in accordance with his department's policy to handcuff individuals transported by police vehicles. Due to Defendant's large frame, Defendant could not put his hands together behind his back. The Officer reached for his handcuff pouch, and when the "snap of the handcuff pouch happened, " Defendant became aggressive, used "foul language[, ]" tensed up, and tried to pull away from the Officer. The Officer testified that, in response, he tried to get control of Defendant. The Officer pushed Defendant into the side of his police vehicle. The Officer testified that once Defendant resisted, he was under arrest for "resist, delay and obstruct[, ]" and he told Defendant he was under arrest.

         Defendant tried to turn around and "raised his fist as if to throw a punch[, ]" causing the Officer to disengage and stand back. The Officer pointed his Taser at Defendant, giving commands and advising him he was under arrest. Defendant took flight, and the Officer gave chase, Taser in hand. Defendant fell to the ground, lying on his back. The Officer commanded Defendant to roll over and place his hands behind his back. Defendant refused to comply, and raised his feet and hands towards the Officer, "taking a combat stance." The Officer fired his Taser, incapacitating Defendant for five seconds. The Officer testified that the "whole time [he] had been on the radio advising [he] was in a chase" and Defendant had been Tased. When Defendant began removing the Taser's probes, the Officer attempted to tase him again, but it was ineffective, as Defendant had removed one of the leads.

         Defendant took flight a second time, and the Officer chased him. The Officer tackled Defendant. The Officer testified: "It's at this time that the fight was on." Defendant began striking the Officer, and the Officer responded, striking Defendant. The Officer testified that "the whole time [he was] giving verbal, clear commands, [and] also trying to talk on [his] radio."

         The Officer's radio was positioned on his shirt, at the center of his chest. At one point, Defendant grabbed the radio and "slung it off to the side" so that the Officer could no longer use it. The blows continued. Defendant reached down and grabbed the Officer's pistol. The two struggled, and the Officer eventually regained control of the pistol. The Officer struck Defendant's thigh with his Asp Baton, but then threw it away because it was ineffective to restrain Defendant.

         The Officer, still on top of Defendant, "took a rear mount" and placed his left forearm in front of Defendant's face to try to hold him down. Defendant continued to fight, and bit the Officer's left forearm, causing the Officer to reposition. Defendant bit him a second time, causing the Officer to release Defendant. Defendant tried to turn around, so the Officer again repositioned. Defendant bit him a third time, on the Officer's right bicep. Defendant was then able to get "a front mount" on top of the Officer. When the Officer's backup arrived, the Officer was lying on his back, attempting to defend himself. The Officer and Defendant continued to struggle as backup assisted in securing Defendant.

         The Officer's injuries included: sustained puncture wounds on his left forearm and right bicep, severe bruising and depressions, permanent scarring, and scabbing. The scarring includes a large circle on his right bicep, "just over a half an inch to an inch in a circle" with a "large depression[, ]" and "a deep ridge" on his left arm. The Officer experienced loss of sleep and extreme stress. He also had to be tested multiple times for communicable diseases, which he described as "extremely nerve-racking[.]"

         Defendant was indicted for: (1) assault on a law enforcement officer inflicting serious bodily injury by "biting [the Officer]" and "hitting him about his face with closed fists[;]" (2) assault with a deadly weapon inflicting serious bodily injury, the deadly weapon being Defendant's teeth; and (3) attaining habitual felon status. Defendant filed a pretrial Motion to Suppress, arguing the arrest was unlawful, and, thus, any acts after the arrest should be suppressed as fruits of the poisonous tree. The trial court denied this motion. At the end of the State's evidence, Defendant again argued the arrest was unlawful, moving to dismiss the charges. His motion was denied. Defendant did not present any evidence, and renewed his Motion to Dismiss. The trial court again denied the motion.

         The jury returned verdicts of guilty for assault on an officer inflicting serious bodily injury, assault inflicting serious injury, and attaining habitual felon status. The trial court arrested judgment on the assault inflicting serious injury offense, and entered judgment on the offense of assault on a law enforcement officer inflicting serious bodily injury with the habitual felon enhancement. Defendant was sentenced to an active term of 146 to 188 months. Defendant gave oral notice of appeal.

         Analysis

         On appeal, Defendant presents four arguments: (1) the trial court erred by denying his Motion to Dismiss; (2) the trial court erred or plainly erred by denying his Motion to Suppress and admitting evidence obtained as a result of an unlawful arrest; (3) the trial court erred or plainly erred by failing to instruct the jury on the right to resist an unlawful arrest; and (4) the trial court erred or plainly erred by failing to instruct the jury on the right to defend oneself from excessive force by a law enforcement officer. We disagree and address the arguments in turn.

         I. Motion to Dismiss

         Defendant argues the trial court erred by denying his Motion to Dismiss because he only used the amount of force reasonably necessary to resist an unlawful arrest when he fought the Officer. We disagree.

         We review the denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). A trial court properly denies a motion to dismiss if "there is substantial evidence (1) of each essential element of the offense charged, and (2) that defendant is the perpetrator of the offense." Id. at 62, 650 S.E.2d at 33 (citations omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 62, 650 S.E.2d at 33 (quotation omitted). In making this determination, the trial court considers the evidence in the light most favorable to the State. State v. Rose, 339 N.C. 172, 192-93, 451 S.E.2d 211, 223 (1994) (citation omitted).

         To prove assault on a law enforcement officer inflicting serious bodily injury, the State must show: (1) the defendant assaulted the victim; (2) serious bodily injury occurred; (3) the victim was a law enforcement officer performing his official duties at the time of the assault; and (4) the defendant knew or had reasonable grounds to know that the alleged victim was a law enforcement officer. N.C. G.S. § 14-34.7(a) (2015); see also N.C. P.I.-Crim. 208.94 (2015).

         The State provided substantial evidence of each essential element of assault on a law enforcement inflicting serious bodily injury; therefore, it was proper for the trial court to deny Defendant's Motion to ...


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