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.
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.
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.
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.
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.
and Procedural Background
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.
evidence at trial tended to show the following:
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.
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.
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