Opinion
No. COA11–1574–2.
2013-02-19
STATE of North Carolina v. Joseph Alan LAMBERT.
Attorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State. Anne Bleyman for Defendant.
Appeal by Defendant from order entered 16 May 2011 by Judge Hugh B. Lewis in Superior Court, Mecklenburg County. Heard in the Court of Appeals 14 August 2012, and opinion filed 4 September 2012, dismissing the appeal for lack of jurisdiction. On remand to this Court by order of the North Carolina Supreme Court on 12 December 2012, granting Defendant's petition for writ of certiorari and remanding for consideration of the merits of Defendant's appeal from the final judgment of the trial court. Attorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State. Anne Bleyman for Defendant.
McGEE, Judge.
This case is before us on remand from the North Carolina Supreme Court for consideration of the merits of Defendant's appeal from the final judgment of the trial court.
Defendant filed a pretrial motion to suppress evidence seized as the result of an alleged unconstitutional seizure of Defendant's person, and the trial court denied this motion. Defendant subsequently pleaded guilty to possession of heroin and possession of drug paraphernalia.
Defendant first argues that the trial court erred by making findings that are not supported by competent evidence. Defendant challenges findings of fact 17 through 21, which refer to Defendant's demeanor during the suppression hearing:
17. Defendant's eyelids were “heavy and drooped” during his testimony.
18. Defendant's gait and movements were erratic as he came to the stand to testify.
19. Defendant slurred a number of words during his testimony.
20. Defendant exhibited agitation several times during his testimony, including slamming something down onto the defense table when he was called to the stand.
21. Defendant stated he had not used any controlled substances since the night he was arrested.
This Court relies on the trial court to determine witness credibility. “An appellate court accords great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence.” State v. Hernandez, 170 N.C.App. 299, 303–04, 612 S.E.2d 420, 423 (2005).
The trial court need find only those facts that are relevant to its conclusions of law. An “order will not be disturbed because of ... erroneous findings which do not affect the conclusions.” Hernandez, 170 N.C.App. at 305, 612 S.E.2d at 424 (alteration in original) (internal quotation marks omitted). Findings 17 through 21 do not affect the trial court's conclusion that Defendant was not seized.
Defendant further argues that the trial court erred in concluding that Defendant was “hung over” and untruthful concerning his present use of controlled substances. A “pronouncement by the trial court which does not require the employment of legal principles will be treated as a finding of fact, regardless of how it is denominated in the court's order.” State v. Maready, 205 N.C.App. 1, ––––, 695 S.E.2d 771, 780 (2010).
The determination that an individual is “hung over” or “untruthful” does not require the employment of legal principles. These conclusions are properly considered findings of fact. As previously discussed, findings about Defendant's demeanor at the hearing do not affect the trial court's conclusion of law. Even if certain findings were erroneous, we will not disturb the order when such findings do not affect the trial court's conclusions of law. Hernandez, 170 N.C.App. at 305, 612 S.E.2d at 424.
Defendant also challenges findings 11 and 12, set forth below.
11. Defendant moved to the back of the vehicle while the officer was using his radio to check for warrants in the manner described above.
12. Neither officer prevented Defendant from moving to the back of the Blazer.
“Our review of a trial court's denial of a motion to suppress is strictly limited to a determination of whether [its] findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion.” Hernandez, 170 N.C.App. at 304, 612 S.E.2d at 423. The trial court's conclusions of law are reviewed de novo. Id.
Defendant argues that the trial court relied on these erroneous findings to conclude as a matter of law that Defendant “could move freely.” Specifically, he contends the evidence “does not support finding 11 that Mr. Lambert spontaneously moved to the back of the Blazer.” However, the trial court did not find that Defendant “spontaneously moved.” This argument is without merit.
Competent evidence supports finding 12. Officer Baucom testified that he had Defendant “step to the back of the vehicle[.]” No evidence indicates that either officer prevented Defendant from moving to the back of the vehicle. The trial court did not err in making this finding.
Defendant next argues that the trial court erred in concluding that the encounter between Defendant and the officers was consensual.
“An individual is seized by a police officer and is thus within the protection of the Fourth Amendment when the officer's conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” State v. Icard, 363 N.C. 303, 308, 677 S.E.2d 822, 826 (2009) (internal quotation marks omitted). “A reviewing court determines whether a reasonable person would feel free to decline the officer's request or otherwise terminate the encounter by examining the totality of circumstances.” Icard, 363 N.C. at 308–09, 677 S.E .2d at 826.
Relevant circumstances include, but are not limited to, the number of officers present, whether the officer displayed a weapon, the officer's words and tone of voice, any physical contact between the officer and the individual, whether the officer retained the individual's identification or property, the location of the encounter, and whether the officer blocked the individual's path.
Icard, 363 N.C. at 309, 677 S.E.2d at 827.
“The record reveals that much of the evidence presented to the trial court during the voir dire hearing regarding the seizure was not contested.” Icard, 363 N.C. at 310, 677 S.E.2d at 827. In contrast, in the present case, Defendant did contest some of the State's evidence during the hearing. We review the trial court's findings of fact and uncontested evidence presented at the hearing.
The trial court entered the following relevant findings of fact in its order denying the motion to suppress:
5. The Blazer was occupied by four white males including the Defendant, Joseph Lambert.
7. The officers pulled in behind the Blazer and initiated contact with the occupants of the vehicle.
8. The officers approached the vehicle [and] asked the occupants if they would step out of the Blazer and show the officers their IDs.
9. The occupants complied with the request, stepped out of the Blazer and provided the officers with their IDs.
10. One of the officers used his radio to check for warrants on the individuals who had stepped out of the Blazer and provided IDs.
11. Defendant moved to the back of the vehicle while the officer was using his radio to check for warrants in the manner described above.
12. Neither officer prevented Defendant from moving to the back of the Blazer.
13. As Officer Stout arrived on the scene Officer Stout observed Defendant throw a bottle of pills under the Blazer.
Officer Baucom testified that he approached Defendant's vehicle during daylight with one other officer; he did not use his vehicle's blue lights; he parked “behind and at an angle” from Defendant's vehicle; he was in uniform, with his gun on his hip; he asked for Defendant's ID and “held on to it” during the encounter; and he did not touch Defendant until he searched him with Defendant's consent.
In Icard, our Supreme Court concluded that
the officers mounted a show of authority when: (1) Officer Moore, who was armed and in uniform, initiated the encounter, telling the occupants of the truck that the area was known for drug crimes and prostitution; (2) Officer Moore called for backup assistance; (3) Officer Moore initially illuminated the truck with blue lights; (4) Officer Hedrick illuminated defendant's side of the truck with his take-down lights; (5) Officer Moore opened defendant's door, giving her no choice but to respond to him; and (6) Officer Moore instructed defendant to exit the truck and bring her purse.
Icard, 363 N.C. at 310, 677 S.E.2d at 827.
In the present case, the encounter occurred in a parking lot, with only two officers initially present. The Blazer had four occupants, including Defendant. The officers had no physical contact with Defendant without his consent. The findings and uncontested testimony do not show that: the officers blocked Defendant's path; the police vehicle blocked Defendant's vehicle; the officers actively displayed a weapon, beyond wearing a weapon; or that the officers used the police vehicle's blue lights.
Although Officer Baucom, who was armed and in uniform, retained Defendant's identification during the encounter, we hold that, under the totality of the circumstances, a reasonable person would feel free to decline the officer's request or otherwise terminate the encounter. The trial court did not err in denying Defendant's motion to suppress.
Affirmed. Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).