An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-556 NORTH CAROLINA COURT OF APPEALS Filed: 4 March 2014 STATE OF NORTH CAROLINA
Mecklenburg County v. Nos. 11 CRS 3173-74, 12462
DAMIEN NEWELL VAZQUEZ
Appeal by defendant from judgments entered 16 January 2013
by Judge Forrest D. Bridges in Mecklenburg County Superior
Court. Heard in the Court of Appeals 10 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State.
The Law Office of Bruce T. Cunningham, Jr., by Amanda S. Zimmer, for Defendant.
ERVIN, Judge.
Defendant Damien Newell Vazquez appeals from judgments
sentencing him to a term of 84 to 110 months imprisonment based
upon his conviction of robbery with a dangerous weapon; to a
consecutive term of 21 to 26 months imprisonment, a sentence
that was suspended on the condition that Defendant be on
supervised probation for 30 months and comply with certain terms
and conditions, based upon his conviction of attempted second -2- degree kidnaping; and to a consecutive term of 17 to 21 months
imprisonment, a sentence that was suspended on the condition
that Defendant be on supervised probation for 30 months and
comply with certain terms and conditions, based upon his
conviction of possession of a firearm by a felon. On appeal,
Defendant contends that the trial court erred by denying his
motion to suppress certain evidence seized from his person on
the grounds that the evidence in question was obtained as the
result of a violation of his federal and state constitutional
right to be free from unreasonable searches and seizures. After
careful consideration of Defendant’s challenges to the trial
court’s judgments in light of the record and the applicable law,
we conclude that the trial court’s judgments should remain
undisturbed.
I. Factual Background
A. Substantive Facts
At approximately 11:03 a.m. on 23 December 2010, officers
of the Charlotte-Mecklenburg Police Department received a report
that a robbery had occurred at Starlight Technologies, an
internet sweepstakes business located on Wilkinson Boulevard in
Charlotte. As a result of the fact that he was already in the
area, Officer Ryan Keith Nicholson of the Charlotte-Mecklenburg
Police Department arrived at Starlight Technologies within a -3- minute or two after receiving a report that the robbery had
occurred.
After his arrival at Starlight Technologies, Officer
Nicholson learned from an employee named Jeffery Dorton that the
robbery had been committed by a black male who was approximately
five feet, six inches tall and who was wearing dark pants, a
gray hooded sweatshirt, and a face mask made of black material.
According to Mr. Dorton, the perpetrator had been in possession
of a handgun and had left the store on foot and had run through
a parking lot towards Midland Avenue. After receiving this
information, Officer Nicholson sent out a radio transmission
containing the suspect’s description while other officers set up
a perimeter and began patrolling the area surrounding Starlight
Technologies.
Approximately four minutes after Officer Nicholson radioed
the suspect’s description to other officers, Officer Troy Hurst
of the Charlotte-Mecklenburg Police Department, who was working
in an undercover capacity, informed the other officers in the
area that he had spotted an individual matching the description
of the person being sought in connection with the Starlight
Technologies robbery. More specifically, Officer Hurst
indicated that, within three to five minutes after receiving
Officer Nicholson’s radio call, he had seen a subject walk -4- between two houses that were located within half a mile of the
Starlight Technologies building, look cautiously back towards
Midland Avenue, and put his hands on his knees in an attempt “to
catch his breath” as if he had been running. According to
Officer Hurst, the individual in question was tall and slim.
However, the suspect was not wearing a gray hoodie.
Officer Hurst observed the suspect move through a grass-
covered area and walk towards the corner of a house after
spotting a marked police car. After observing this individual,
Officer Hurst sent out a dispatch indicating that someone needed
to make contact with “this gentleman.” Although he spent 15 to
20 minutes in the area, Officer Hurst did not observe anyone
else matching the description of the suspect in the Starlight
Technologies robbery during that time.
After Officer Hurst indicated that the person whom he had
been observing should be stopped, Officer B.K. Lewis of the
Charlotte-Mecklenburg Police Department stopped an individual
who turned out to be Defendant. Approximately ten seconds
later, Officer Nicholson arrived at the scene. According to
Officer Nicholson, while Defendant was wearing dark pants, he
did not have a gray hooded sweatshirt. At or shortly after his
arrival at the scene of the stop, Officer Nicholson placed his
hand on Defendant’s chest and felt Defendant’s heart beating -5- fast, a fact that suggested that Defendant had just been engaged
in strenuous physical activity.
After being detained, Defendant consented to a search of
his person, during which investigating officers seized $990 in
cash. At that point, the investigating officers contacted Mr.
Dorton, who confirmed that nearly $1,000 had been taken during
the robbery. Upon receiving this information, investigating
officers transported Defendant to Starlight Technologies, where
Mr. Dorton identified Defendant as the individual who had
committed the robbery.
B. Procedural Facts
On 18 January 2011, the Mecklenburg County grand jury
returned bills of indictment charging Defendant with one count
of robbery with a dangerous weapon and one count of attempted
second degree kidnaping. On 28 February 2011, the Mecklenburg
County grand jury returned a bill of indictment charging
Defendant with possession of a firearm by a felon. On 28 July
2011, Defendant filed a motion seeking to have all evidence
seized from his person following his detention suppressed on the
grounds that the evidence in question had been obtained as the
result of a violation of his state and federal constitutional
right to be free from unreasonable searches and seizures.
Defendant’s suppression motion came on for hearing before the -6- trial court on 16 January 2013. Following the conclusion of the
hearing concerning the merits of Defendant’s suppression motion,
the trial court entered a written order denying Defendant’s
motion on 17 January 2013.
After the trial court indicated its intention to deny his
suppression motion, Defendant entered into a plea agreement with
the State pursuant to which he agreed to plead guilty to all of
the charges that had been lodged against him on the
understanding that sentencing would be in the discretion of the
trial court and that he had reserved the right to seek appellate
review of the denial of his suppression motion. Based upon
Defendant’s guilty pleas, the trial court entered judgments
sentencing Defendant to a term of 84 to 110 months imprisonment
based upon his conviction of robbery with a dangerous weapon; to
a consecutive term of 21 to 26 months imprisonment, with this
sentence being suspended on the condition that Defendant be on
supervised probation for 30 months, pay the costs and attorney’s
fees of $1,750, serve a term of six months imprisonment, comply
with the usual terms and conditions of probation, and not go on
or about the premises of Starlight Technologies, based upon his
conviction of attempted second degree kidnaping; and to a
consecutive term of 17 to 21 months imprisonment, with this
sentence being suspended on the condition that Defendant be on -7- supervised probation for 30 months, serve a term of two month
imprisonment, and comply with the usual terms and conditions of
probation, based upon his conviction of possession of a firearm
by a felon on 16 January 2013. Defendant noted an appeal to
this Court.1
II. Legal Analysis
In his brief, Defendant advances two challenges to the
denial of his suppression motion. As an initial matter,
Defendant argues that the trial court erred by finding that
Officer Nicholson had observed Defendant walking in the area
around Starlight Technologies on the grounds that Officer Hurst,
rather than Officer Nicholson, had made these observations.
Secondly, Defendant contends that Officer Lewis did not have a
reasonable articulable suspicion that Defendant had been engaged
in criminal activity at the time that he stopped Defendant.
1 As the record clearly reflects, Defendant erroneously noted his appeal from the trial court’s decision to deny his suppression motion rather than the trial court’s judgments. State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542, 542-43 (2010). In recognition of this error, Defendant has petitioned this Court for the issuance of a writ of certiorari authorizing review of his challenges to the trial court’s judgments. In view of the fact that Defendant’s “right to prosecute an appeal has been lost by [his] failure to take timely action,” N.C.R. App. P. 21(a)(1), through no fault of his own, we now grant the requested writ and will review Defendant’s challenges to the denial of his suppression motion on the merits. E.g., State v. Franklin, __ N.C. App. __, __, 736 S.E.2d 218, 220, (2012), aff’d by equally divided vote on other grounds, __ N.C. __, __ S.E.2d __ (2013). -8- Although Defendant is correct in noting that the challenged
finding of fact lacked adequate evidentiary support, we do not
believe that Defendant has established that he is entitled to
relief from the trial court’s order based upon these challenges.
A. Standard of Review
“The standard of review in evaluating the denial of a
motion to suppress is whether competent evidence supports the
trial court’s findings of fact and whether the findings of fact
support the conclusions of law.” State v. Biber, 365 N.C. 162,
167-68, 712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337
N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994)). “While the trial
court’s factual findings are binding if sustained by the
evidence, the court’s conclusions based thereon are reviewable
de novo on appeal.” State v. Parker, 137 N.C. App. 590, 594,
530 S.E.2d 297, 300 (2000) (citing State v. Mahaley, 332 N.C.
583, 592-93, 4232 S.E.2d 58, 64 (1992), cert. denied, 513 U.S.
1089, 115 S. Ct. 749, 130 S.E.2d 649 (1995)). Thus, our task in
reviewing Defendant’s challenge to the trial court’s judgments
is to determine whether the trial court’s findings of fact have
adequate evidentiary support and, if so, whether the conclusions
of law that the trial court made based upon these factual
findings rest upon a correct application of the applicable law.
B. Specific Challenges to the Trial Court’s Order -9- 1. Finding of Fact No. 4
In Finding of Fact No. 4, the trial court found that:
As Nicholson drove through a neighborhood about 1/4 mile from the crime scene, he spotted the Defendant walking between [two] houses and looking back toward the crime scene. Defendant also bent over and placed his hands on his knees, attempting to catch his breath as if he had been running. Defendant was wearing dark pants, but was not wearing a gray hooded sweatshirt.
However, as the record reflects, Officer Hurst, instead of
Officer Nicholson, made these observations. As Officer
Nicholson testified, Defendant had already been stopped by
Officer Lewis when he first saw him. For that reason, the trial
court’s finding that Officer Nicholson was the officer who
initially observed Defendant in the area around Starlight
Technologies after the robbery clearly lacks adequate record
support. As a result, as Defendant argues, this portion of
Finding of Fact No. 4 is not binding upon us for purposes of
appellate review. However, for the reasons set forth below, our
determination to this effect does not necessitate an award of
appellate relief.
2. Reasonable Articulable Suspicion
“A police officer may effect a brief investigatory seizure
of an individual where the officer has [a] reasonable
articulable suspicion that a crime may” have been committed. -10- State v. Barnard, 184 N.C. App. 25, 29, 645 S.E.2d 780, 783
(2007) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,
1880, 20 L. Ed. 2d 889, 906 (1968)), aff’d, 362 N.C. 244, 658
S.E.2d 643, cert. denied, 555 U.S. 914, 129 S. Ct. 264, 172 L.
Ed. 2d 198 (2008). In making this determination:
Courts must consider “‘the totality of the circumstances–the whole picture’” in making the determination as to whether a reasonable suspicion to make an investigatory stop existed at the time the stop was made.
The totality of the circumstances test must be viewed through the prism of a reasonable police officer standard; that is, the reviewing court must take into account an officer's training and experience. Thus, a police officer must have developed more than an “‘unparticularized suspicion or hunch’” before an investigatory stop may occur.
State v. Willis, 125 N.C. App. 537, 541, 481 S.E.2d 407, 410
(1997) (quoting State v. Watkins, 337 N.C. 437, 441-42, 446
S.E.2d 67, 70 (1994)) (citations omitted). In recognition of
the fact that law enforcement officers do not work in isolation,
this Court has identified three ways in which the required
reasonable articulable suspicion may be developed:
(1) the officer making the stop has a reasonable suspicion, based on his personal observations, that criminal conduct has occurred, is occurring, or is about to occur; (2) the officer making the stop has received a request to stop the defendant from another officer, if that other officer had, prior to the issuance of the request, the necessary reasonable suspicion; (3) the -11- officer making the stop received, prior to the stop, information from another officer, which, when combined with the observations made by the stopping officer, constitute the necessary reasonable suspicion.
State v. Battle, 109 N.C. App. 367, 371, 427 S.E.2d 156, 159
(1993). Although Defendant contends that “[n]one of the
officers involved in this case had sufficient information to
form reasonable suspicion,” we believe that Officer Lewis had a
sufficient basis to justify detaining Defendant given the
content of the collective knowledge possessed by all of the
officers involved in the investigation of the Starlight
Technologies robbery and the fact that he was requested to
detain Defendant based upon that collective knowledge.
The trial court’s findings of fact did not explicitly state
the reason that Officer Lewis decided to stop Defendant.
“However, where evidence is uncontroverted and the facts not in
dispute, a trial court is not required to make findings of fact,
even when provided for by statute or case law.” State v.
Futrell, 112 N.C. App. 651, 665, 436 S.E.2d 884, 891 (1993). In
light of this basic principle, we have, on other occasions,
evaluated the undisputed evidence presented at a suppression
hearing for the purpose of determining whether the trial court
correctly denied a defendant’s suppression motion despite the
absence of particular findings of fact in the trial court’s -12- order. E.g., State v. Phillips, 300 N.C. 678, 685-86, 268
S.E.2d 452, 457 (1980) (holding that the trial court did not,
despite a failure to make findings of fact addressing a certain
issue, commit prejudicial error given that it “specifically
conclude[d] that the officer had probable cause to effect the
arrest” and that such “conclusion [was] based upon the State’s
undisputed evidence”). As a result, given that the testimony
given by the investigating officers at the suppression hearing
was undisputed,2 we will determine the basis for Officer Lewis’
decision to detain Defendant and the extent to which he acted
lawfully in doing so based upon an analysis of the undisputed
record evidence without regard to the trial court’s failure to
correctly identify the officer who observed Defendant
immediately prior to the stop and the trial court’s failure to
explicitly state the basis for Officer Lewis’ decision to detain
Defendant in its findings of fact.
As an initial matter, we must address Defendant’s
contention that, “[b]ecause Officer Lewis did not testify, it is
not clear what information he had received.” The fact that
Officer Lewis did not explicitly describe the basis for his
decision to stop Defendant at the suppression hearing does not 2 Although Defendant testified during the hearing that he did not consent to the search, we need not address the validity of the trial court’s determination to the contrary since he has not challenged it on appeal. -13- compel a decision to overturn the denial of Defendant’s
suppression motion given that a lawful investigative detention
may occur in the event that “the officer making the stop has
received a request to stop the defendant from another officer,
if that other officer had, prior to the issuance of the request,
the necessary reasonable suspicion,” Battle, 109 N.C. App. at
371, 427 S.E.2d at 159, and given our conclusion that Officer
Lewis was entitled to stop Defendant based upon a request
received from Officer Hurst. In order to reach this result, we
must determine that the undisputed record evidence establishes
that (1) the officer requesting that the stop be made had
sufficient reasonable suspicion to justify that action and (2)
directed a second officer to perform a stop after obtaining such
suspicion.
The record contains undisputed evidence tending to show
that Officer Hurst told Officer Lewis to stop Defendant. As we
have already noted, Officer Hurst stated over his radio that the
“gentleman” later determined to be Defendant should be stopped
and that no one else in the area other than Defendant matched
the description of the person whom he wanted to be detained. As
the record clearly reflects, Officer Hurst’s conduct was fully
consistent with the fact that the officers involved in
investigating the Starlight Technologies robbery were in -14- communication with each other about the course of the
investigation using this means of communication for the purpose
of taking joint action to apprehend the suspect. Although
Officer Hurst did not provide a detailed description of the
suspect or recite the information that led him to request that
the stop be made in the relevant radio communication, we have no
difficulty in concluding, given the close proximity in time and
space between the making of Officer Hurst’s request and the
action taken by Officer Lewis, that the undisputed record
evidence establishes that Officer Lewis detained Defendant based
upon the request made by Officer Hurst.
In seeking to persuade us to reach a different result with
respect to this issue, Defendant notes that the dash-cam video
shown during the hearing did not contain a recording of what was
being said and heard during the events depicted on that video
and argues that this fact makes it impossible for us to know
what information Officer Lewis received immediately prior to the
detention of Defendant. As a result of the fact that the trial
court noted that the audio portion of the dash-cam video
recording was unavailable during the hearing, we agree with
Defendant’s contention that a finding that Officer Hurst
requested Officer Lewis to stop Defendant cannot be based upon -15- the audio portion of the dash-cam video recording.3 However, the
fact that the audio portion of the recording was not available
does not detract from the fact that the undisputed record
evidence other than that derived from an examination of the
dash-cam video recording compels the conclusion that Officer
Lewis stopped Defendant at the request of Officer Hurst.
In addition, the undisputed record evidence clearly
establishes that Officer Hurst had sufficient reasonable
articulable suspicion to justify making a request that Defendant
be detained. The description of the suspect in the Starlight
Technologies robbery received by Officer Nicholson from Mr.
Dorton and transmitted over police radio was of an armed black
male who was five feet, six inches tall and wearing black pants
and a gray hoodie. At the time that he was stopped, Defendant,
who is a black male, was wearing black pants. Aside from the
fact that Defendant resembled the general description of the
suspect in the Starlight Technologies robbery transmitted over
the radio, other evidence strongly suggests that Defendant was
the individual for whom the investigating officers were looking.
Defendant was seen in close proximity to the location at which 3 Although we do not base our decision with respect to the reason that Officer Lewis stopped Defendant on this fact, we note that Officer Hurst described the subject whom he wished to have stopped as wearing a black shirt with gray sleeves over the radio and that Defendant was wearing a black shirt with gray sleeves when Officer Lewis stopped him. -16- the robbery had occurred and was breathing sufficiently hard to
suggest that he had been running within approximately five
minutes after the robbery had occurred. At the time that
Officer Hurst saw him, Defendant was near to and looking back at
a street that connected the area in which he was walking to the
Starlight Technologies store. Finally, Defendant was looking
over his shoulder and appeared to be attempting to avoid notice
from the police at the time that Officer Hurst observed him.
All of this information, which Officer Hurst clearly possessed,
provided ample justification for a request that Defendant be
detained for further investigation.
Although Defendant argues that the description of the
suspect in the Starlight Technologies robbery was too vague to
support an investigative detention and that Defendant’s
appearance differed from that description so significantly that
the decision to detain him was unwarranted, we find these
arguments unpersuasive. The fact that the radioed description
of the suspect indicated that he was five feet, six inches tall
and that Defendant described himself as five feet, eight and
three quarters inches in height is of little consequence given
the limited difference between the estimated height of the
suspect and Defendant’s height. In addition, although the
record contains no indication that Defendant possessed a firearm -17- at the time that he was observed by Officer Hurst, this fact
does not compel us to conclude that Officer Hurst did not have
adequate justification for asking that Defendant be detained
given the substantial evidence tending to show that Defendant
was the person for whom the officers were looking and the
opportunities that Defendant had to discard the weapon after the
robbery. Finally, the fact that Defendant was not wearing a
gray hooded sweatshirt at the time that he was observed by
Officer Hurst does not establish that Officer Hurst lacked
authority to request that Defendant be stopped given the ease
with which an item of clothing, such as a sweatshirt, can be
removed and the fact that an exact match between a broadcast
description and a suspect’s appearance is not a necessary
prerequisite for the existence of the reasonable articulable
suspicion needed to support an investigative detention. State
v. Williams, 195 N.C. App. 554, 559, 673 S.E.2d 394, 397 (2009).
(stating that “there is no requirement that the individual
stopped must match precisely the description of the suspect”).
Even though we have previously held that an officer lacked the
authority to detain a defendant when the description of the
person for whom investigating officers were seeking was limited
to a recitation of the suspect’s race unaccompanied by any
mention of the suspect’s “age, physical characteristics, or -18- clothing” and when the detaining officer did “not observe [the]
defendant engaging in any suspicious behavior or mannerisms,”
State v. Cooper, 186 N.C. App. 100, 107, 649 S.E.2d 664, 668
(2007), disc. review denied, 362 N.C. 476, 666 S.E.2d 761
(2008), Officer Hurst had substantially more information in his
possession in this case. As a result, the undisputed evidence
before us in this case clearly establishes that Officer Hurst
had the reasonable articulable suspicion needed to support the
making of a valid request that Defendant be detained.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
neither of Defendant’s challenges to the denial of his
suppression motion necessitate a decision to overturn that
order. As a result, the trial court’s judgments should be, and
hereby are, affirmed.
AFFIRMED.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).