State v. Harrell

312 S.E.2d 230 (1984)

STATE of North Carolina v. Chestean HARRELL.

No. 8319SC797.

Court of Appeals of North Carolina.

March 6, 1984.

*233 Atty. Gen. Rufus L. Edmisten by David E. Broome, Jr., Associate Atty. Gen., Raleigh, for the State.

Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P.A. by James E. Ferguson, II, and Thomas M. Stern, Charlotte, for defendant-appellant.

VAUGHN, Chief Judge.

Defendant alleges, first, that the police encounter underlying the charge of assault was unconstitutional, and, second, that the trial judge's failure to sequester witnesses denied defendant due process and constituted prejudicial error. We deal separately with each of defendant's claims.

Defendant contends that his constitutional rights were violated when he was stopped without reasonable suspicion of criminal activity and that, therefore, his *234 motion to dismiss the assault charges should have been granted. We disagree.

The fourth amendment protects individuals against unreasonable searches and seizures. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Not every police encounter, however, warrants fourth amendment scrutiny. Under Terry v. Ohio and its progeny, a three-tiered standard has developed by which to measure the need to investigate possible criminal activity against the intrusion on individual freedom which the investigation may entail:

(1) Communication between police and citizens involving no coercion or detention are outside the scope of the fourth amendment.

(2) Seizures must be based on reasonable suspicion.

(3) Arrests must be based on probable cause.

State v. Sugg, 61 N.C.App. 106, 300 S.E.2d 248, review denied, 308 N.C. 390, 302 S.E.2d 257 (1983); See Terry v. Ohio, supra.

A police seizure occurs when a reasonable person, in light of the surrounding circumstances, would have believed that he was not free to walk away. State v. Grimmett, 54 N.C.App. 494, 284 S.E.2d 144 (1981), review denied, 305 N.C. 304, 290 S.E.2d 706 (1982); U.S. v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980). The evidence in this case shows that several officers went to the Cannon Mills parking lot in response to a request from the plant security guard. Officer Woodard approached defendant, who was sitting in his car in the parking lot, and asked for some identification. Defendant gave him his driver's license, but very soon thereafter, asked that it be returned. Officer Woodard told defendant he needed to keep it to determine whether defendant was employed by Cannon Mills. The officer's conduct in this case amounted to a seizure; a reasonable person would not have believed he was free to walk away. See State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S. Ct. 220, 62 L. Ed. 2d 143 (1979); State v. Grimmett, supra; U.S. v. Mendenhall, supra.

A seizure falls within the second tier of fourth amendment analysis; the intrusion on personal freedom must be balanced against the government's interest in crime prevention. See Terry v. Ohio, supra. Officer Woodard's conduct in the instant case was thus justifiable if specific and articulable facts, taken together with the rational inferences from those facts created a reasonable suspicion of criminal activity. State v. Thompson, supra. The circumstances surrounding the seizure must be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by experience and training. Id.; see also State v. Gray, 55 N.C.App. 568, 286 S.E.2d 357 (1982).

The circumstances known to Officer Woodard before approaching defendant were:

(1) The time was around 2:30 a.m.

(2) The Cannon Mills work shift, which had begun at 11:00 p.m. would not end until 7:00 a.m.

(3) A security guard at Cannon Mills had called the police station and requested that an officer be sent to the plant parking lot.

(4) The security guard had observed suspicious activitya possible drug exchange involving occupants of a Chevrolet, a Lincoln, and a vehicle already gone.

(5) Defendant was sitting in a Chevrolet that matched the security guard's description.

(6) The Cannon Mills parking lot was known to be a high crime area.

We hold that these circumstances created a reasonable suspicion of criminal activity and furnished ample justification for a brief investigatory stop.

Defendant argues that the circumstances surrounding the seizure here are similar to those in Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), wherein two police officers cruising in a patrol car *235 at 12:45 in the afternoon observed two men walking away from one another in an alley known to have a high incidence of drug trafficking. The Court held that the police request that defendant identify himself and explain what he was doing violated the fourth amendment, since the police had no specific basis for believing he was involved in criminal activity. Id.

We find the Brown case to be inapposite to the case sub judice. Here, the police were responding to a request from the company security guard to investigate suspicious activity and a possible drug exchange, perhaps involving defendant. It is well recognized that a description of either a person or an automobile may furnish reasonable grounds for arresting and detaining a criminal suspect. State v. Adams, 55 N.C.App. 599, 286 S.E.2d 371 (1982). So, too, may such a description, considered together with the surrounding circumstances, furnish the basis for a lesser intrusionthe investigatory stop and seizure of defendant in this case.

A seizure, to be justified under the fourth amendment, must not only be based on a reasonable suspicion, but must also be brief. State v. Grimmett, supra. The State's evidence showed that Officer Woodard's conduct, in asking for and retaining defendant's driver's license in order to determine his identity and employment status did not unnecessarily intrude on defendant's freedom. Defendant was stopped but momentarily before he grabbed for his license and struck Officer Woodard in the face. A brief stop of an individual in order to maintain the status quo while obtaining more information does not violate the fourth amendment. State v. Douglas, 51 N.C.App. 594, 277 S.E.2d 467 (1981), aff'd per curium, 304 N.C. 713, 285 S.E.2d 802 (1982); Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).

We note that defendant's evidence suggests that the officers used physical force to restrain defendant while they engaged in an unlawful search of defendant's automobile. On appeal from the denial of defendant's motion to dismiss, however, the evidence must be viewed in the light most favorable to the State, with the State receiving the benefit of every reasonable inference to be drawn therefrom. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). Contradictions and discrepancies in the evidence are for the jury to resolve. Id The evidence in this case, viewed in the light most favorable to the State, warranted jury consideration.

Defendant argues that the fact that the jury found against defendant shows that they were not properly instructed on the effect of an illegal search and seizure. The jury charge was not, however, included in the record on appeal. We must presume, therefore, that the jury was properly instructed as to the law arising on the evidence. State v. Hedrick, 289 N.C. 232, 221 S.E.2d 350 (1976).

Finally, we note that even if defendant had been illegally restrained under the fourth amendment, he had the right to use only such force as reasonably appeared necessary to prevent the unlawful restraint of his liberty. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954); See Keziah v. Bostic, 452 F. Supp. 912 (W.D.N.C.1978). Defendant's act of striking Officer Woodard in the face was an unnecessary show of force in response to the officer's retention of his license and request to search his car. Defendant was, therefore, properly charged under G.S. 14-33(b)(4).

At trial, before the State had introduced its evidence, defense counsel moved to sequester the prosecution witnesses. The trial judge denied defense counsel's motion. Defendant contends that this denial constituted an abuse of discretion and a denial of due process.

The rule regarding sequestration, stated in G.S. 15A-1225, provides in pertinent part, that "[u]pon motion of a party the judge may order all or some of the witnesses other than the defendant to remain outside of the courtroom until called *236 to testify." The decision whether to sequester witnesses is addressed to the discretion of the trial judge and is not reviewable on appeal absent a showing of abuse of discretion. State v. Royal, 300 N.C. 515, 268 S.E.2d 517 (1980).

Defendant cites several reasons attempting to show an abuse of discretion on the part of the trial judge. Specifically, defendant argues that the large number of prosecution witnesses who testified as to the same set of facts; the hotly debated issues of fact; the existence of a civil suit instituted by defendant against three of the police officers involved in the incident; the discrepancies in the testimony of two officers during a prior trial; and the fact that defendant's motion was timely, made in good faith, and well-supported are factors showing necessity for sequestration. While defendant's arguments are persuasive, we find no abuse of discretion on the part of the trial judge in refusing to sequester the witnesses. Due process does not automatically require separation of witnesses who are to testify to the same set of facts.

The aim of sequestration is two-fold: First, it acts as a restraint on witnesses tailoring their testimony to that of earlier witnesses, and second, it aids in detecting testimony that is less than candid. Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976). We find nothing to indicate that the testimony of any of the State's witnesses was influenced by the testimony of any other witness. We are not persuaded that the existence of a separate civil suit by defendant against three police officers involved in the incident tended to influence the testimonies during the trial hereunder. We find nothing in the record to indicate the existence or nature of alleged discrepancies in the testimony of two police officers during a prior trial.

In general, "the trial and disposition of criminal cases is the public's business and ought to be conducted in open court. The public, and especially the parties, are entitled to see and hear what goes on in court." 1 Brandis on North Carolina Evidence § 20, quoting, In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297 (1979). Defendant received a fair trial. Contrary to defendant's contention, we find no violation of defendant's right to confront and cross-examine witnesses.

No error.

WEBB and JOHNSON, JJ., concur.