In re I.R.T.

• Decision Date: 17 July 2007
• Docket Number: No. COA06-676.,COA06-676.
• Citation: 647 S.E.2d 129
• Parties: In the Matter of I.R.T., a Juvenile.
• Court: North Carolina Court of Appeals

647 S.E.2d 129

In the Matter of I.R.T., a Juvenile.

No. COA06-676.

Court of Appeals of North Carolina.

July 17, 2007.

Appeal by juvenile from a juvenile adjudication order entered 8 February 2006 by Judge James T. Hill in Durham County District Court. Heard in the Court of Appeals 11 January 2007.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Kathleen M. Waylett and Assistant Attorney General Jay L. Osborne, for the State.

Terry F. Rose, Smithfield, for juvenile-appellant.

HUNTER, Judge.

I.R.T. ("juvenile") appeals from an order adjudicating him delinquent for possessing crack-cocaine with the intent to sell or distribute. After careful consideration, we remand for disposition based on an adjudication finding juvenile responsible for simple possession.

On the afternoon of 19 May 2005, Durham Police Officers S.E. Kershaw ("Corporal Kershaw") and J.L. Honeycutt ("Officer Honeycutt") were on patrol along Beaman Street when they observed a group of individuals standing outside an apartment building. The officers exited their vehicles and walked up to the group, engaging the group members in conversation. Corporal Kershaw testified that officers have previously arrested people on drug charges in the area, but stated that on 19 May police had not received any reports of drug sales nearby.

Corporal Kershaw testified that he approached juvenile, that juvenile looked at him, and then quickly turned his head away. Corporal Kershaw asked juvenile if he lived in the building, and juvenile answered no. "[A]s I was talking to him, he kept his head turned away from me and I could tell that he was not moving his mouth as though he had something inside of his mouth[,]" Corporal Kershaw stated.

Corporal Kershaw explained that he had previously encountered individuals acting evasive and hiding crack-cocaine in their mouths, and those experiences made him suspect juvenile might be hiding drugs in his mouth. "By his mannerisms, by turning away, by not opening his mouth as he talked, you could tell that he had something in his mouth that he was trying to hide[,]" Corporal Kershaw stated.

Suspecting juvenile of hiding drugs in his mouth, Corporal Kershaw requested juvenile to spit out what was in his mouth. Juvenile then spit out one crack-cocaine rock wrapped in cellophane. Corporal Kershaw then placed juvenile under arrest for possession of cocaine with the intent to sell or deliver. A search of juvenile's person turned up $271.00 in cash.

Following a bench trial in Durham County District Court, Judge James T. Hill entered an order adjudicating juvenile delinquent for possession of cocaine with the intent to sell or deliver. He placed juvenile on probation for a period of twelve months and required juvenile to complete a substance abuse assessment and a mental health assessment, as well as 200 hours of community service. The order further provided that the juvenile would maintain passing grades in at least four courses during each grading period, and refrain from associating with anyone in the Blood gang. From this order, juvenile appeals.

I.

Juvenile first argues that the trial court erred by determining that juvenile was competent to stand trial. N.C. Gen.Stat. § 15A-1001(a) (2005) states in relevant part:

No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner. This condition is hereinafter referred to as "incapacity to proceed."

Id. "The question of defendant's capacity is within the trial judge's discretion and his determination thereof, if supported by the evidence, is conclusive on appeal." State v. Reid, 38 N.C.App. 547, 548-49, 248 S.E.2d 390, 391 (1978).

In the case sub judice, the trial court considered the opinions of two psychologists who testified and submitted reports giving conflicting opinions. Dr. David Vande Vusse ("Dr. Vande Vusse") submitted a forensic screening evaluation stating that, "Though legal terms and procedures will need to be explained to [juvenile] in concrete terms, [juvenile] does not demonstrate any mental defect that would preclude his capacity to proceed to trial."

Dr. Timothy Hancock ("Dr. Hancock") offered a different opinion, stating in his report that juvenile was not competent to stand trial. Dr. Hancock based his opinion on juvenile's evaluations showing a progressive decline in intellectual abilities. "While it is possible that he may be educated about the concrete facts of the courtroom, just as would a young child . . . [t]he preponderance of the evidence indicates that [juvenile] is not competent to stand trial."

Following the competency hearing, the trial court entered an order on 19 January 2006 finding juvenile competent to stand trial. The order cited the evidence offered by both psychologists and cited Dr. Vande Vusse's evaluation in support of its findings. Specifically, the court found that juvenile is able to assist in his own defense and work with his attorney; that juvenile does not demonstrate symptoms of any mental disorder that could interfere with his ability to participate in court proceedings; and that juvenile has the ability to understand legal terms and procedures that are explained in concrete terms.

As the court's findings were based on testimony and evaluations submitted by experts, those findings were supported by competent evidence. We determine the trial court did not abuse its discretion in concluding, upon those findings, that juvenile was competent to stand trial. This assignment of error is overruled.

II.

Juvenile next argues that the trial court erred in denying his motion to suppress evidence of crack-cocaine found on his person. We disagree.

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]" U.S. Const. amend. IV. A consensual encounter with the police in a public place is neither a search nor a seizure. See State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973) (citing United States v. Hill, 340 F.Supp. 344, 347 (E.D.Pa. 1972)). Accordingly, the Constitution does not "prevent[ ] a policeman from addressing questions to anyone on the streets." Id. (citing Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 20 L.Ed.2d 889, 913 (1968) (White, J., concurring)). When an encounter with the police develops into a "seizure" (or "stop")¹ however, the constitutional protections of the Fourth Amendment are implicated. United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497, 508-09 (1980).

A person will be "`seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d at 509 (footnote omitted). Factors relevant to whether a seizure has occurred — that is, whether a reasonable person would not feel free to leave — include: (1) "the threatening presence of several officers," (2) "the display of a weapon by an officer," (3) "some physical touching of the person of the citizen,"² or (4) "the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Id. (citations omitted).

There has not been an explicit holding by the courts of this state as to whether the age of a defendant or juvenile is a relevant inquiry in determining whether a reasonable person would feel free to leave. See State v. Freeman, 307 N.C. 357, 363, 298 S.E.2d 331, 334 (1983) (considering that the defendant was seventeen years old and the police officer was fifty years old in determining whether a reasonable person would feel free to leave) cf. State v. Christie, 96 N.C.App. 178, 184, 385 S.E.2d 181, 184 (1989) ("[t]he Mendenhall standard of whether a reasonable person would have believed that he was not free to leave is an objective standard, not subjective"). A defendant's age has been used to determine whether he was in custody, but the test to determine custody is not identical to the test to determine whether a seizure has occurred. State v. Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001). That said, we see no legal or common sense reason to make a distinction. Thus, we hold that the age of a juvenile is a relevant factor in determining whether a seizure has occurred within the meaning of the Fourth Amendment.

"Our review of a trial court's denial of a motion to suppress is limited to a determination of whether its findings are supported by competent evidence, and if so, whether the findings support the trial court's conclusions of law." State v. McRae, 154 N.C.App. 624, 627-28, 573 S.E.2d 214, 217 (2002). In the instant case, the officer "requested" that juvenile spit out what was in his mouth. However, the trial court made no finding as to consent. Accordingly, we are unable to determine whether this seizure was consensual. See id. at 630, 573 S.E.2d 214, 573 S.E.2d at 219 (the defendant's acquiescence to an officer's request to remove an item from his pocket amounted to clear and unequivocal consent for the seizure).

Although there is no case on point, we believe a seizure occurred under the facts of this case. First, there were two officers present, both of whom arrived in marked police cars. Second, the guns they were carrying were visible. Third, the officers had a gang unit emblem on their shirt. Fourth, juvenile was fifteen years old at the time of the alleged offense. Given this show of authority, the officer's "request" could have been construed by a reasonable person of juvenile's age as an order, compliance with which was mandatory. Und...