State v. Carmon

• Decision Date: 04 March 2003
• Docket Number: No. COA02-571.,COA02-571.
• Citation: 156 NC App. 235,576 S.E.2d 730
• Parties: STATE of North Carolina v. Marcus Lamont CARMON.
• Court: North Carolina Court of Appeals

576 S.E.2d 730

156 NC App. 235

STATE of North Carolina v. Marcus Lamont CARMON.

No. COA02-571.

Court of Appeals of North Carolina.

March 4, 2003.

Attorney General Roy Cooper, by Assistant Attorney General William R. Miller, for the State.

Geoffrey W. Hosford, Wilmington, for defendant-appellant.

TYSON, Judge.

I. Background

Greenville Police Officer Jay Madigan, ("Madigan"), drove his personal vehicle into the Food Lion parking lot on 6 April 2001, around 10:00 p.m. Madigan spotted a large, dark sport sedan with chrome rims parked in the parking lot. Madigan observed Marcus Lamont Carmon ("defendant") standing partially inside the sedan with the passenger door opened, and saw the driver passing an object about the size of a softball to the defendant. Defendant held the package close to his chest, put the package in his jacket, and stepped away from the sedan. The sedan drove away as defendant walked toward the pay telephones located near the Food Lion entrance. Defendant appeared to survey the area, "looking all around and all around and all around." Defendant never searched for change or a calling card, or attempted to make a phone call.

Defendant walked towards the entrance of the Food Lion and continued to survey the area. Defendant walked to another vehicle in the parking lot and entered the passenger side. While observing defendant, Madigan used his cell phone to call the police communications center. He relayed his observations concerning defendant to E.L. Phipps ("Phipps") of the Greenville Police Department. Phipps relayed this to Officer William Holland ("Holland") of the Greenville Police Department. Madigan had received extensive narcotics training from the state and federal government.

Defendant's girlfriend purchased a bag of groceries, left the Food Lion store, and entered the driver's side of the vehicle in which defendant was seated. The girlfriend drove out of the parking lot and was stopped by Phipps and Holland. Holland approached the girlfriend, and Phipps moved toward defendant. Phipps explained to defendant what Madigan had observed. Defendant denied the allegations and consented to be searched. Phipps immediately reached to where Madigan had seen defendant place the package. Phipps felt the package and alerted Holland who reached through the car and retrieved two plastic bags wrapped around approximately 55.4 grams of powder containing cocaine.

Defendant was transported to the police station where he received his Miranda rights. Defendant provided a written statement to police. Defendant stated that he called "Flash" about 9:30 p.m., explained that he had a money problem, and that Flash told defendant to meet him at Food Lion. Flash arrived around 10:00 p.m. and gave defendant the cocaine. Defendant owed Flash two thousand dollars. Defendant also stated that his girlfriend went into the store to purchase beer and that she knew nothing about the drug exchange.

Defendant was not immediately arrested but was encouraged to cooperate in an investigation against Flash. Officer A.P. White requested that defendant be released to work for the investigation. Defendant never assisted in apprehending Flash. Defendant was arrested on 22 June 2001 and charged with trafficking cocaine by possession, trafficking cocaine by transportation, and possession with intent to sell and deliver cocaine.

Defendant moved to suppress his statement on the grounds that the officers coerced him to cooperate by threatening to charge his girlfriend. The trial court found that this suggestion originated from defendant's own motives, and that defendant's statement was voluntarily and understandingly given.

Defendant also moved to suppress all evidence obtained from the stop of the vehicle. The trial court found that defendant consented to the search of his person and that Madigan's observations were sufficient to raise a reasonable suspicion and to warrant an investigatory stop.

A jury found defendant guilty of trafficking cocaine by possession, trafficking cocaine by transportation, and possession with intent to sell and deliver cocaine. Defendant was sentenced to consecutive terms of 35-42 months each for the trafficking offenses and 8-10 months for the possession, the possession sentence to run concurrently with the trafficking offenses. Defendant appeals.

II. Issues

Defendant assigns eight errors. (1) The trial court erred in denying the motion to suppress evidence because Madigan only had an "inarticulable hunch" and not articulable suspicion that defendant was engaged in criminal activity and, (2) denying the motion to suppress defendant's statement because of police coercion. (3) The trial court erred when it denied defendant's motion to dismiss because of insufficient evidence that defendant committed the offense of trafficking by transportation. (4) The trial court erred when it allowed improper lay opinion testimony about defendant's behavior and (5) when it allowed the prosecutor to cross-examine SBI Agent Wagoner ("Wagoner") about the amount of crack cocaine that a person could generate from the evidence seized. (6) The trial court erred and violated defendant's confrontation rights by allowing Wagoner to testify about the results of tests performed by SBI Agent Suggs ("Suggs"). (7) The trial court committed plain error in denying defendant the opportunity to poll the jury after return of the verdicts and (8) in denying defendant the opportunity to address the court prior to imposing judgment.

III. Denial of the Motion to Suppress

A. Evidence Seized

Defendant contends that the trial court should have suppressed the evidence seized during the stop and search and argues that the officers did not have an articulable suspicion that defendant was involved in criminal activity. The test for articulable suspicion is based upon the "totality of the circumstances" and is very fact-specific. See In re Whitley, 122 N.C.App. 290, 468 S.E.2d 610, disc. rev. denied, 344 N.C. 437, 476 S.E.2d 132 (1996).

The trial court's findings of fact "are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995). The conclusions of law "must be legally correct, reflecting a correct application of applicable legal principles to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).

Officer Madigan observed defendant receive a softball-size package from a man in a conspicuous car at night. Madigan noticed what appeared to be nervous behavior by the defendant after the transaction.

Officer Madigan's observations of defendant's behavior and apparent nervousness, are appropriate considerations to determine whether reasonable suspicion existed. State v. McClendon, 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999), State v. Butler, 147 N.C.App. 1, 8, 556 S.E.2d 304, 309 (2001), aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002), State v. Hendrickson, 124 N.C.App. 150, 155, 476 S.E.2d 389, 392-93 (1996), appeal dismissed, disc. rev. improvidently allowed, 346 N.C. 273, 485 S.E.2d 45 (1997). See also State v. Grimmett, 54 N.C.App. 494, 502, 284 S.E.2d 144, 150 (1981), disc. rev. denied, 305 N.C. 304, 290 S.E.2d 706 (1982) (holding nervousness alone does not provide reasonable suspicion). The nighttime exchange as well as Madigan's past experience in observing drug transactions as a police officer and extensive narcotic training are factors to determine whether the officer had a reasonable suspicion justifying the stop. See State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 505 (1973) (holding time of day or night to be a relevant consideration in determining whether reasonable suspicion exists); Butler, 147 N.C.App. at 7, 556 S.E.2d at 308-309 ("[a] trained narcotics agent forms a reasonable, articulable suspicion that an individual is a drug courier on the basis of identifiable behaviors that are usually associated with drug couriers as opposed to law abiding citizens." (internal quotations omitted)). Madigan testified that the incident looked like a "classic" drug transaction, the sort of hypothetical given in narcotics school. We find these observations to be sufficient for an "articulable suspicion." Defendant's assignment of error is overruled.

B. Statement Given

Defendant contends that the trial court erred in denying his motion to suppress the statement he gave to the officers. Defendant argues that his statement was coerced and out of fear that his girlfriend would be charged if he declined to talk.

Officer Holland admitted at trial that he told defendant that his girlfriend could be charged and her vehicle seized if defendant did not cooperate. Defendant was not specifically induced to confess but rather to "cooperate" with police. Defendant Carmon chose to make a statement as part of his cooperation, not in exchange for his freedom or leniency, but to avoid possible prosecution of his girlfriend. The alleged "threat" towards defendant's girlfriend's arrest was insufficient to render defendant's statement involuntary as the officers never stated that defendant's girlfriend would be charged but only indicated that it could happen.

Defendant was offered the opportunity to assist the police investigation of Flash to avoid immediate arrest. Defendant gave a statement but later refused to help in the investigation of Flash.

"[P]romises not to prosecute a defendant made during a police interrogation, in return for a defendant's confession, deserve the same scrutiny under contract and due process principles as promises made in the context of plea bargains." State v. Sturgill, 121 N.C.App. 629, 637, 469 S.E.2d 557, 562 (1996). The facts in Sturgill are distinguishable. At bar, the officers promised not to prosecute defendant if defendant would assist in their investigation of Flash. Unlike Sturgill, the officers here kept their...