State v. Parker

• Decision Date: 18 January 2005
• Docket Number: No. COA04-756,COA04-756
• Citation: State v. Parker, 607 SE 2d 55 (N.C. App. 2005)
• Parties: STATE OF NORTH CAROLINA v. JOHN D. PARKER.
• Court: North Carolina Court of Appeals

607 SE 2d 55

STATE OF NORTH CAROLINA v.JOHN D. PARKER.

No. COA04-756

North Carolina Court of Appeals.

Filed January 18, 2005.

This case not for publication

Durham County, No. 03CRS043894.

Attorney GeneralRoy A. Cooper, III, by Special Deputy Attorney GeneralWilliam P. Hart and Assistant Attorney GeneralJoseph E. Herrin, for the State.

Peter Wood for defendant-appellant.

HUNTER, Judge.

John D. Parker("defendant") was found guilty of common law robbery and was sentenced by the trial court to an active prison term of sixteen to eighteen months.On appeal, defendant challenges the trial court's denial of his motion to suppress the complaining witness' pretrial and in-court identifications of defendant, as well as currency and a check for $62.40 belonging to the witness which were found by police on defendant's person during a search incident to his arrest.Accordingly, we limit our discussion to the pre-trial proceeding on defendant's motion.

Durham Police Officer J. L. Honeycutt("Honeycutt") testified that on the morning of 7 March 2003, he was dispatched to the Inand Out Food Mart ("the In and Out") on Fayetteville Street in Durham, North Carolina.He arrived at the In and Out at 9:11 a.m., "[a]pproximately three or four minutes" after receiving the dispatcher's call, and spoke to Winford Edwards, who claimed he had been robbed.Edwards had sustained injuries including a bloody nose and was still bleeding.Edwards described the robber to Honeycutt as "a tall, black male, about six f[ee]t tall, wearing a black and white jacket and black pants."A store employee advised Honeycutt that the suspect ran towards the Fayetteville Street housing projects.Honeycutt drove through the housing projects in his patrol car.Less than five minutes after speaking to Edwards, Honeycutt "located a tall, black male in a white and black colored jacket and black jeans[,]" later determined to be defendant, approximately 100 to 150 yards from the In and Out.A second man was in the vicinity with defendant, but Honeycutt did not observe him carefully and did not determine if the two men were together.Honeycutt parked his car approximately thirty feet away from defendant and began walking toward him.Approached by the uniformed officer, defendant"took off running east through the yards of the housing development."Honeycutt pursued defendant on foot, announcing that he was with the Durham Police Department and ordering defendant to stop.Defendant led Honeycutt on a three to four minute chase through a wooded area and across two streets before he"kind of gave up" as the officer "was catching up" to him.Upon handcuffing defendant, Honeycutt "searched inside his pockets" and found a check for $62.00 and currency consistingprimarily of $1.00 bills.A second officer placed the handcuffed defendant in the back of a patrol car and transported him back to the In and Out.Honeycutt then returned to the store and gave the money and check found on defendant to Officer Reaves.He estimated he had spent no more than fifteen minutes in the housing projects before returning to the In and Out.Honeycutt also noted that "the sun was shining" on the morning in question.

Edwards, a self-employed sandwich wholesaler, testified that he went to the In and Out just before 9:00 a.m. on 7 March 2003, during his daily delivery route.As he entered the store, he noticed two men standing by the front door.When Edwards walked back to his truck to pack the store's sandwich order, defendant grabbed him from behind, threw him to the ground, and "tried to get money out of [his] shirt pocket."Edwards grabbed his shirt pocket with both hands to prevent the theft.In response, defendant"beat [Edwards'] head into the asphalt" until he surrendered the money.Stolen from Edwards' pocket were "a lot of one-dollar bills, a [twenty]-dollar bill, and one check made out to Made-Right Sandwich Company."Defendant's associate kicked Edwards in the ribs and poured coffee on his face.After the robbery, the two men "took off running down through the projects."Within thirty seconds, Edwards flagged down a police car which was driving down Fayetteville Street, reported the robbery to the officer, and provided a description of his assailant.Five minutes later, the officer returned with defendant in the back of his patrol car.From a distance of six to eight feet, Edwards identified defendantas "one of the men that had jumped me."Defendant was clad in the black pants and the "white and black or yellow and black" striped coat which Edwards had described to the officer.

Edwards estimated the robbery lasted "a minute[,]" but claimed he had seen defendant"clearly" each time his "head c[a]me up off the asphalt."He sustained "two black eyes, a bloody nose, and abrasions on the right side of [his] face" during the assault, and was still bleeding heavily from the nose when he identified defendant for police as the robber.When presenting defendant to Edwards, the officer asked, "`[i]s this the man?'"Edwards recognized defendant and responded "[r]ight away."After he had identified defendant, an officer asked Edwards to go to the police station, where he identified the check and currency recovered from defendant.Edwards was first told about the money by police "when they finished up at the In and Out," which he estimated as being "about [thirty] minutes after the robbery[.]"

The trial court questioned Edwards further concerning his ability to observe his assailant during the robbery, as follows:

[THE COURT:] Mr. Edwards, would you have been able to identify the defendant as the person who assaulted you even if the police had not have found him that morning and brought him back to [the] store?

THE WITNESS: Yes.

THE COURT: You got a sufficient opportunity to see him, look at him, and know the person . . . who assaulted you so that you could identify him in this courtroom?

THE WITNESS: Yes.Edwards also confirmed that he had observed defendant standing by the front door of the In and Out when he first went into the store.Defendant offered no evidence at the suppression hearing.

The trial court denied defendant's motion to suppress both Edwards' show-up identification and in-court identification of defendant, as well as the currency and check found on defendant's person by Officer Honeycutt.It noted that Edwards "said he saw [defendant] when he went into the store, and he saw him when he was assaulted, and he saw him run away."Although the court announced its intention to "make specific findings of fact and conclusions of law later in this proceeding[,]" the record on appeal does not contain any such material.It appears the court may have forgotten to enter its findings and conclusions.

We note initially that the trial court's apparent failure to enter findings of fact and conclusions of law is not reversible error in this case, because there was no material conflict in the evidence adduced at the suppression hearing.SeeState v. Riddick,291 N.C. 399, 408, 230 S.E.2d 506, 512(1976);In re Horne,50 N.C. App. 97, 101, 272 S.E.2d 905, 908(1980).The necessary findings are deemed to be implicit in the trial court's ruling to admit the challenged evidence.SeeState v. Whitley,288 N.C. 106, 110, 215 S.E.2d 568, 571(1975).The issue before this Court is whether the undisputed evidence supports conclusions of law which would justify the denial of defendant's motion to suppress.

Challenging the trial court's denial of his motion to suppress the currency and check found in his pocket, defendant avers thatHoneycutt lacked probable cause to arrest him at the time he performed the search yielding Edwards' property.Because the search was performed without a warrant and not incident to a lawful arrest, defendant claims that its fruits were inadmissible.

Consistent with the Fourth Amendment, a police officer may arrest a suspect without a warrant based upon probable cause to believe that the suspect has committed a felony.SeeN.C. Gen. Stat. § 15A-401(b)(1)(2003)."`Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.'"State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367(1971)(quoting5 Am. Jur. 2dArrests§ 44(1962)).Moreover, incident to a lawful arrest, the officer may conduct a warrantless search of "`the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.'"State v. Thomas,81 N.C. App. 200, 210, 343 S.E.2d 588, 594(1986)(quotingChimel v. California,395 U.S. 752, 763, 23 L. Ed. 2d 685, 694(1969)).

Based on the undisputed facts before the trial court, we conclude that Officer Honeycutt had probable cause to arrest defendant for the robbery of Edwards at the In and Out.Honeycutt interviewed Edwards immediately after the alleged robbery, while his injuries were fresh and corroborated his allegations.Edwards described his assailant as "a tall, black male, about six f[ee]t tall, wearing a black and white jacket and black pants."A store employee advised Honeycutt of the suspect's path of flight from thestore, further corroborating Edwards' story.Upon entering the housing development where Edwards' attacker had fled, Honeycutt spotted defendant, who matched Edwards' description and was clad in a black and white jacket and black jeans.Defendant was standing a mere 100 to 150 yards from the site of the alleged crime.When Honeycutt approached defendant, he ran, ignoring the uniformed officer's subsequent commands to stop.Taken together, the powerful circumstantial evidence of a recent violent crime, defendant's close proximity to the crime scene minutes thereafter, the fact that he and his...