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State v. Nicholson

Supreme Court of North Carolina

June 8, 2018


          Heard in the Supreme Court on 13 March 2018.

          Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C.App. ___, 805 S.E.2d 348 (2017), finding prejudicial error after appeal from a judgment entered on 13 May 2016 by Judge John O. Craig III in Superior Court, Forsyth County, and granting defendant a new trial.

          Joshua H. Stein, Attorney General, by John R. Green, Jr., Special Deputy Attorney General, for the State-appellant.

          Narendra K. Ghosh for defendant-appellee.

          HUDSON, Justice.

         Here we consider whether a police officer's decision to briefly detain Defendant Ahmad Jamil Nicholson for questioning was supported by a reasonable suspicion of criminal activity. Because we conclude that it was, we reverse the decision of the Court of Appeals holding otherwise and reinstate defendant's conviction.


         While on patrol at around 4:00 a.m. on 23 December 2015, Lieutenant Damien Marotz of the Kernersville Police Department noticed a car parked on West Mountain Street in a turn lane next to a gas station. The car had its headlights on but no turn signal blinking. As Lt. Marotz pulled his marked patrol vehicle up next to the car, he saw two men inside, one in the driver's seat and the other-later identified as defendant-in the seat directly behind the driver. The windows were down despite misting rain and a temperature in the 40s. As Lt. Marotz pulled alongside, he saw defendant pulling down a hood or "toboggan-style mask of some kind . . . with the holes in the eyes." Defendant pulled it down to the bridge of his nose but then pushed it back up when he saw Lt. Marotz.

         Lt. Marotz asked the two men whether everything was okay, and they responded that it was. The driver, Quentin Chavis, explained that the man in the back seat was his brother and they had been in an argument. Chavis said that the argument was over and that everything was okay; defendant agreed, saying, "Yes, Officer, everything's fine." Sensing that something was not quite right, however, Lt. Marotz again asked the pair whether they were okay, and they nodded to indicate that they were. Then the driver moved his hand near his neck, "scratching or doing something with his hand, " but Lt. Marotz was unsure what this gesture meant.

         Still feeling that something was amiss, Lt. Marotz drove into the gas station parking lot to observe the situation. After watching as Chavis's car remained immobile in the turn lane for another half a minute, Lt. Marotz got out of his patrol vehicle and started on foot toward the stopped car. Defendant then stepped out, and Chavis began to edge the car forward about two feet. Lt. Marotz asked Chavis, "Where are you going? Are you going to leave your brother just out here?" Chavis responded, "No. I'm just late for work. I've got to get to work." Lt. Marotz again asked whether everything was okay, and the two men said "yes, " everything was fine. Although Chavis said "yes, " he shook his head "no." This gesture prompted Lt. Marotz to say to defendant, "Well, your brother here in the driver's seat is shaking his head. He's telling me everything's not fine. Is everything fine or not? Is everything good?" Chavis quickly interjected, "No, Officer, everything's fine. I've just got to get to work." After Chavis again stressed that he was going to be late for his job, Lt. Marotz told him, "Okay. Go to work."

         After Chavis drove away, defendant stated to Lt. Marotz, "The store's right here. Can I just walk to the store? Please sir?" to which Lt. Marotz responded, "[H]ang tight for me just a second . . . you don't have any weapons on you do you?"[1] Defendant said that he had a knife with him that he carried for self-defense, but a frisk of his person by a backup officer who had just arrived did not reveal a weapon. After additional questioning, the officers learned defendant's identity from his ID card and told him he was "free to go."

         Later that day, Chavis reported to police that defendant, who was not actually his brother, had been in the process of robbing him when Lt. Marotz pulled up. Chavis testified at trial that defendant had flagged him down while he (Chavis) was on his way to his early morning shift at FedEx and had requested a ride to the gas station. Once in the car, defendant held a knife to Chavis's throat and demanded money. Chavis handed over his debit card just before Lt. Marotz pulled up. Police later found a steak knife in the back seat of Chavis's vehicle. During a search of defendant's residence, police discovered a knife block containing steak knives that looked identical to the one found in Chavis's car, one of which was missing.

         On 14 March 2016, the Forsyth County Grand Jury indicted defendant for robbery with a dangerous weapon. On 4 May 2016, defendant moved to suppress evidence obtained as a result of his seizure by Lt. Marotz, asserting that defendant had been unlawfully detained in violation of his rights under the constitutions of the United States and North Carolina.

         Defendant was tried during the criminal session of Superior Court, Forsyth County, that began on 9 May 2016 before Judge John O. Craig III. At a hearing conducted that day on defendant's motion to suppress evidence related to his seizure, Lt. Marotz was the sole witness. His testimony included the facts set forth above explaining defendant's seizure on the morning of 23 December 2015. After hearing arguments from counsel, the trial court orally denied the motion to suppress without making specific findings of fact or conclusions of law. Although the trial court instructed the State to prepare an order containing findings of fact and conclusions of law, no such order can be found in the record.

         The jury convicted defendant of common law robbery on 12 May 2016, and the trial court sentenced him to ten to twenty-one months of imprisonment, suspended for thirty-six months of supervised probation. Defendant appealed, and on 19 September 2017 the Court of Appeals issued a divided opinion in which it ordered a new trial after concluding that Lt. Marotz lacked reasonable suspicion to detain defendant for questioning and that the trial court committed prejudicial error by denying defendant's suppression motion. State v. Nicholson, ___ N.C.App. ___, ___, 805 S.E.2d 348, 358. The dissenting judge concluded that the trial court had properly denied the motion because Lt. Marotz did have reasonable suspicion that criminal activity was afoot when he seized defendant. Id. at ___, 805 S.E.2d at 358 (Murphy, J., dissenting). The State filed its appeal of right to this Court based on the dissent.

         II. ...

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