State v. Brewington

• Citation: 612 S.E.2d 648
• Decision Date: 17 May 2005
• Docket Number: No. COA03-1654.,COA03-1654.
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Herman Ellis BREWINGTON.

Page 648

612 S.E.2d 648

STATE of North Carolina v. Herman Ellis BREWINGTON.

No. COA03-1654.

Court of Appeals of North Carolina.

May 17, 2005.

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Appeal by defendant from judgments entered 17 December 2002 by Judge Anthony Brannon in New Hanover County Superior Court. Heard in the Court of Appeals 12 October 2004.

Attorney General Roy A. Cooper, III, by Assistant Attorney General David J. Adinolfi II, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, New Bern, for defendant-appellant.

HUNTER, Judge.

Hermal¹ Ellis Brewington ("defendant") presents the following issues for our consideration: Did the trial court erroneously (I) deny his motion to suppress evidence of an unlawful stop and detention by the police; (II) deny a request for a jury instruction on the right to resist an unlawful arrest; (III) admit evidence of other wrong acts and crimes in violation of Rule 404(b); and (IV) deny his motion to dismiss all charges. Defendant also presents three issues arising from the habitual felon phase of his trial: (I) Should the habitual felon indictment have been dismissed by the trial court because one of the alleged felonies was possession of cocaine; (II) did the trial court erroneously conduct an evidentiary hearing without a motion from either party; and (III) did the State produce competent evidence to prove his prior felony convictions listed in the habitual felon indictment. After careful review, we find no prejudicial error occurred in defendant's trial.

The evidence tends to indicate that at approximately noon on 10 September 2001, Deputy Michael Howe ("Deputy Howe"), a member of the New Hanover County Sheriff's Department Emergency Response Team, observed a car in which the driver was not wearing his seatbelt. Defendant was a passenger in this car. Deputy Howe initiated a traffic stop and the car pulled into a driveway. Deputy Howe parked his police vehicle on the street in a manner that blocked the driveway. Deputy Howe approached the car and told the driver that he had been stopped due to a seatbelt violation. The driver acknowledged he was not wearing his seatbelt and produced his driver's license and registration.

Deputy Howe looked at the passenger while talking to the driver. Deputy Howe testified the passenger was vigorously chewing on a straw, starting to sweat, making jerking and quick movements with his neck and hand, and attempting to go into his left front pocket. Deputy Howe observed a bulge in that pocket and became concerned that it could be a weapon. After observing the passenger's actions, Deputy Howe asked the driver to exit the vehicle. He did not remove the passenger from the car; rather, he instructed the passenger to remain calm, to not go into his pockets, and asked the passenger his name. The passenger gave the fictitious name of Michael Allen; however, it was later determined the passenger was Hermal Brewington, the defendant in this case.

After removing the driver from the car, Deputy Howe and the driver walked to the police vehicle at the end of the driveway on the street. Deputy Howe conducted a consensual pat-down frisk of the driver to determine if he had any weapons and discovered a user's amount of crack cocaine. Intending to place the driver under arrest, he placed handcuffs on the driver and called for police back-up. He placed the evidence on the trunk of the police vehicle, placed the driver into the passenger seat of the police vehicle, and began placing a seatbelt on the driver. The defendant was still sitting on the passenger side of the driver's car. However, as Deputy Howe was placing the seatbelt on the driver, he saw defendant slide into the driver's seat of the stopped car.

Deputy Howe testified that he ran to the stopped car in order to detain the car as he did not want defendant to flee the area or drive away with the car. By the time Deputy Howe got to the front of the stopped car, defendant had started the car. The driver's side window was open. Deputy Howe told defendant "[d]on't do it" several times, meaning don't flee the scene. He then called police dispatch for further assistance and drew his weapon with his right hand. Prior to this, Deputy Howe had not drawn his weapon. He continued to give defendant verbal commands to turn the vehicle off; however, defendant continued trying to move the gear shift from park. As a result, Deputy Howe reached into the car with his left hand and reached in between the steering wheel to grab the key. Defendant turned the steering wheel, lifting Deputy Howe's arm and body into the air. Deputy Howe's arm was stuck in the vehicle. Deputy Howe continued to request defendant to stop the car; however, defendant placed the car in reverse and started going backwards. The car hit the police vehicle. Defendant then put the car into drive and started going forward. Deputy Howe's arm remained stuck in the steering wheel and he was forced to move with the car. Deputy Howe regained his footing and began running alongside the car. Deputy Howe took his pistol, pressed it against defendant's left cheek, and told defendant he was going to shoot him. Deputy Howe then hit defendant with the gun, and after he felt like he was going under the car, he started firing his pistol. After he started shooting, his arm was freed from the car, but he continued firing his weapon. Deputy Howe fired five rounds from his pistol in approximately two seconds. Defendant was able to drive away from the scene. The testimony of two Wilmington Police Department officers that responded to the scene corroborated Deputy Howe's testimony that he was dragged by the car.

Jonathan Barfield ("Barfield"), a former New Hanover County Commissioner, was across the street showing a home for a possible rental on the day of the incident. In regards to what transpired between defendant and Deputy Howe, Barfield testified that Deputy Howe did not have his weapon drawn as he ran to the car. When he got to the side of the car, he drew his weapon and said "[g]et out from under that wheel[.]" While at the side of the car, Deputy Howe stated "[t]urn the engine off. Turn the engine off. Get out of the car. If you don't get out of the car, I'm going to shoot you." After Deputy Howe threatened to shoot defendant, the car backed up, hit Deputy Howe, and knocked him into a bush. The car hit the police vehicle, traveled between a bush and the sidewalk, and then traveled down the street. As the car was traveling between the bush and the sidewalk, Deputy Howe began firing his weapon. According to Barfield, Deputy Howe had both of his hands on the gun and never leaned into the car. Barfield also testified that he never saw Deputy Howe dragged by the car and that Deputy Howe was not in the path of the car. According to Barfield, no other officers were present when Deputy Howe was shooting.

After defendant left the scene, he attempted to sell the car at a local junkyard. The junkyard owner testified the car was "shot up" and the man was bleeding. The junkyard owner told defendant to leave and he later identified defendant from a photographic lineup. The car was located a few days later on a highway south of Brunswick County. Analysis of the car revealed a large amount of blood saturating the front area of the car, dents on the driver's side, a broken back window, and a bullet hole in the driver's seat headrest. A trajectory expert testified that the four shots fired were consistent with a shooter firing as he was falling down.

Defendant was arrested on 10 October 2001 in Ottawa Hills, Ohio. Defendant informed the arresting officer that he had a gunshot injury that had not been treated. The officer observed an area on defendant's left shoulder that appeared to be healing and X-rays revealed defendant had a broken left arm. Defendant received medical treatment and was taken to jail. He was indicted on 25 February 2002 for felony larceny, reckless driving, driving with a revoked license, injury to personal property, and assault on a governmental officer with a deadly weapon. The State also indicted defendant as being a habitual felon. Defendant was found guilty of assault on a governmental officer with a deadly weapon and reckless driving. A mistrial was entered as to the larceny of a motor vehicle charge because the jury was unable to reach a unanimous verdict. After defendant was found guilty of having attained habitual felon status, he was sentenced to a minimum of 100 and a maximum of 129 months on the assault charge. He was sentenced to forty-five days in jail for reckless driving to run concurrently with the assault sentence. Defendant appeals.

Defendant first contends the trial court erroneously denied his motion to suppress evidence of his stop and detention by Deputy Howe on 10 September 2002. Defendant argues Deputy Howe did not properly keep and detain him during his investigative stop of the driver and that defendant was free to leave the scene without interference from Deputy Howe.

"In reviewing a trial judge's ruling on a suppression motion, we determine only whether the trial court's findings of fact are supported by competent evidence, and whether these findings of fact support the court's conclusions of law." State v. Pulliam, 139 N.C.App. 437, 439-40, 533 S.E.2d 280, 282 (2000). "Further, `the trial court's ruling on a motion to suppress is afforded great deference upon appellate review as it has the duty to hear testimony and weigh the evidence.'" State v. Castellon, 151 N.C.App. 675, 677, 566 S.E.2d 696, 697 (2002) (citation omitted). Defendant does not challenge the trial court's findings of fact in the suppression order. Thus, we review the trial court's conclusions of law.

The trial court concluded that (1) there was probable cause to stop the vehicle, (2) defendant, a passenger in the vehicle, could be detained as the driver had been lawfully stopped for...