State v. Vazquez

An unpublished opinion of the North Carolina Court of Appeals does not constitute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).