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State v. Malachi

Court of Appeals of North Carolina

March 5, 2019

THE STATE OF NORTH CAROLINA,
v.
TERANCE GERMAINE MALACHI, Defendant.

          Heard in the Court of Appeals 25 January 2017, decided 25 January 2017, reversed by the Supreme Court of North Carolina 7 December 2018 and remanded to the Court of Appeals.

          Appeal by Defendant by writ of certiorari from judgment entered 28 January 2016 by Judge Yvonne M. Evans in Mecklenburg County No. 14 CRS 232320 Superior Court.

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

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant-Appellant.

          INMAN, JUDGE.

         The trial court did not commit plain error by allowing evidence of a handgun a police officer removed from the waistband of a man in the course of stopping, seizing, and frisking him after forming a reasonable articulable suspicion that the suspect may have been engaged in unlawful conduct and was armed and dangerous.

         Terance Germaine Malachi ("Defendant") appeals from his conviction for possession of a firearm by a felon following a jury trial and a related conviction for attaining habitual felon status. This is this Court's second decision regarding Defendant's appeal, to resolve an issue not addressed in our initial decision.

         Defendant argues that the trial court committed plain error by allowing the jury to hear evidence obtained as a result of an unconstitutional stop and seizure of Defendant. After careful review of the record and applicable law, we conclude that Defendant has failed to demonstrate plain error.

         Factual and Procedural Background

         An expanded summary of the factual and procedural background of this appeal can be found in our initial decision in State v. Malachi, __ N.C.App. __, 799 S.E.2d 645 (2017), rev'd and remanded, __ N.C. __, 821 S.E.2d 407 (2018). Below we summarize the facts and procedure pertinent to the single issue before us.

         The evidence at trial tended to show the following:

         Shortly after midnight on 14 August 2014, the Charlotte-Mecklenburg Police Department received a 911 call from an anonymous caller. The caller told the dispatcher that in the rear parking lot of a gas station located at 3416 Freedom Drive in Charlotte, North Carolina, an African American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants.

         Officer Ethan Clark, in uniform and a marked car, first responded to the call. Officer Clark's arrival was followed almost immediately by Officer Jason Van Aken. Officer Clark saw about six to eight people standing in the parking lot, including a person who matched the description provided to the dispatcher and who was later identified as Defendant.

         When Officer Clark got out of his car, Defendant looked directly at him, "bladed, turned his body away, [and] started to walk away." Officer Clark immediately approached Defendant and grabbed his arm. Officer Van Aken held Defendant's other arm and the two officers walked Defendant away from the crowd of people. Defendant was squirming. ...


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