State v. Dalton
| Decision Date | 20 October 2020 |
| Docket Number | No. COA20-248,COA20-248 |
| Citation | 850 S.E.2d 560 |
| Parties | STATE of North Carolina v. Tevin O'Brian DALTON |
| Court | North Carolina Court of Appeals |
Joshua H. Stein Attorney General, by Assistant Attorney General Nicholas W. Yates, for the State.
BJK Legal, by Benjamin J. Kull, Raleigh, for defendant.
Tevin O'Brian Dalton ("defendant") appeals from the trial court's denial of his motion to suppress certain evidence before trial and the calculation and imposition of his sentence after trial. For the following reasons, we find no error in the trial court's denial of defendant's motion to suppress; however, we remand this matter to the Iredell County Superior Court for resentencing.
Around ten o'clock in the evening of 11 November 2014, Statesville Police Officer Ben Hardy ("Officer Hardy") observed a white Mercedes traveling with a "large glow coming from inside the vehicle." Officer Hardy proceeded to follow the vehicle at which point he noticed a "more prevalent" glow emitting from the vehicle. Upon following the vehicle to a stop sign, Officer Hardy discovered that the glow was being produced by a cellular device held by the driver and sole occupant of the car. Officer Hardy testified that at this point he could "see the phone was up in the air, almost like in the center." It appeared that the driver was texting on the phone. Officer Hardy immediately relayed tag information to communications and initiated a stop of the vehicle based on the suspicion that the driver, which later turned out to be defendant, was texting while driving.
Upon approaching the vehicle, Officer Hardy notified the driver that he had been stopped for texting while driving. The driver "kind of laughed at that notion" and claimed that he was using the phone's "maps" application as he had "somewhere to get to." The Officer asked to see the driver's phone to confirm. Defendant voluntarily retrieved his phone and "immediately as soon as he turned his phone on, it was [on] a texting screen."
Officer Hardy then asked for the driver's license and registration. The driver did not provide either but identified himself as "Tevin Dalton." Officer Hardy returned to his vehicle to confirm the provided information in a law enforcement database called "CJLEADS," which displays pictures of persons entered into the system. Officer Hardy, thus, could have confirmed at this time that the individual driving the vehicle was in fact defendant.
However, before Officer Hardy had the opportunity to enter the foregoing information into CJLEADS, defendant drove off at a high rate of speed. Officer Hardy pursued the vehicle, which was traveling "well in excess of ninety [miles-per-hour]" in a thirty-five mile-per-hour zone. Due to its high speed and dangerous maneuvering, Officer Hardy lost sight of the vehicle shortly thereafter as defendant turned onto Interstate 77. For safety reasons, Officer Hardy was ordered to stop the pursuit. Officer Hardy complied and issued a "Be on the Look Out" or "BOLO" to the North Carolina Highway Patrol and other law enforcement agencies. Shortly afterward, Officer Hardy was notified that highway patrol had located the vehicle and "got in a chase with it also on the interstate." However, similar to Officer Hardy's chase, the highway patrol officer "lost sight of the vehicle and cancelled the[ ] pursuit because of safety reasons[.]"
When Officer Hardy returned to the station, he entered the name and date of birth supplied by the driver during the initial stop into CJLEADS. Defendant's profile appeared with his picture thus confirming that the driver of the Mercedes was in fact defendant. CJLEADS also indicated that defendant's driver's license had been revoked in North Carolina. At this juncture, as he had ascertained the identity of the driver of the subject vehicle, Officer Hardy went to the magistrate's office and swore out warrants on defendant for felonious fleeing to elude arrest and texting while driving.
Before trial, defendant filed a motion to suppress evidence obtained during the traffic stop, particularly the evidence identifying defendant as the driver of the vehicle. The trial court denied the motion during a pretrial hearing, finding that the "officer had reasonable suspicion to stop the vehicle to investigate further." At trial, in November 2019, neither defendant nor his counsel objected to Officer Hardy's testimony regarding evidence obtained during the traffic stop (i.e. , the information gathered from defendant that allowed Officer Hardy to identify defendant as the driver of the vehicle).
On 15 November 2019, the jury found defendant guilty of felonious fleeing to elude but not guilty to the charge of texting while driving. The State and counsel for defendant stipulated to six sentencing points (thus level III) for felony sentencing purposes. The trial court sentenced defendant to a minimum of ten and a maximum of twenty-one months’ imprisonment. Defendant gave oral notice of appeal the same day.
Defendant contends that the trial court committed plain error by denying his motion to suppress evidence obtained by Officer Hardy during the traffic stop, specifically the information conveyed by defendant identifying him as the driver of the Mercedes. Defendant also avers that the trial court erred by sentencing him based on a miscalculation of his prior record level under the guidelines. We address each issue in turn.
At the outset, we note that neither defendant nor his trial counsel objected to Officer Hardy's testimony concerning the evidence defendant sought to suppress before trial. The trial court's "evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial." State v. Oglesby , 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (emphasis in original) (citations omitted). By failing to renew his objection at trial, defendant waived review of this issue. See , e.g. , State v. Adams , 250 N.C. App. 664, 669, 794 S.E.2d 357, 361 (2016). However, "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest," the Court may "suspend or vary the requirements or provisions of any of the[ ] [appellate] rules in a case pending before it upon application of a party or upon its own initiative[.]" N.C.R. App. P. 2 (2020). In our discretion, we elect to reach the merits of defendant's appeal.
When reviewing a motion to suppress, the trial court's findings of fact are "conclusive and binding on appeal if supported by competent evidence." State v. Edwards , 185 N.C. App. 701, 702, 649 S.E.2d 646, 648 (2007). This Court reviews the trial court's conclusions of law de novo. Id. (citation omitted). But, as noted above, because defendant failed to object at trial, our standard of review of the admission of the challenged evidence is for plain error. Adams , 250 N.C. App. at 669, 794 S.E.2d at 361. State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citation omitted) (quoting State v. Odom , 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ). "[Plain] error will often be one that ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]’ " Lawrence , 365 N.C. at 518, 723 S.E.2d at 334 (quoting Odom , 307 N.C. at 660, 300 S.E.2d at 378 ).
In the case before us, defendant contends that the trial court committed plain error by concluding that Officer Hardy was justified in stopping the Mercedes solely based on his observation that the "operator was using a cell phone while driving." Defendant points out that merely "using a cell phone" is not criminal activity per se , and, therefore, the trial court erroneously concluded that the stop was justified based on a reasonable suspicion that "non-criminal activity was afoot." Alternatively, defendant argues that even if this Court finds that the trial court applied the correct legal standard, the lower court's conclusions of law were not supported by its findings of fact.
"Both the United States and North Carolina Constitutions protect against unreasonable searches and seizures." State v. Otto , 366 N.C. 134, 136, 726 S.E.2d 824, 827 (2012) . Traffic stops, such as the one at issue here, are historically reviewed under the framework espoused in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed. 2d 889 (1968). State v. Styles , 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (citation omitted). Under Terry and its progeny, a "traffic stop is permitted if the officer has a ‘reasonable, articulable suspicion that criminal activity is afoot.’ " Styles , 362 N.C. at 414, 665 S.E.2d at 439 (quoting Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 675, 145 L. Ed. 2d 570, 576 (2000) ). "The only requirement is a minimal level of objective justification, something more than an ‘unparticularized suspicion or hunch.’ " State v. Watkins , 337 N.C. 437, 442, 446 S.E.2d 67, 70 (1994) (quoting United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) ). "To meet the reasonable suspicion standard, it is enough for the officer to reasonably believe that a driver has violated the law." State v. Johnson , 370 N.C. 32, 38, 803 S.E.2d 137, 141 (2017) (emphasis in original) (citations omitted).
North Carolina, like other states, has statutorily proscribed certain uses of mobile telephones while operating a motor vehicle. The relevant provision in this State reads, in pertinent portion, the following:
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