{ "id": 4168500, "name": "STATE OF NORTH CAROLINA v. KERRY JAMES WADE", "name_abbreviation": "State v. Wade", "decision_date": "2009-07-21", "docket_number": "No. COA08-1414", "first_page": "257", "last_page": "273", "citations": [ { "type": "official", "cite": "198 N.C. App. 257" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "621 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634410, 12634411 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/621/0878-01", "/se2d/621/0878-02" ] }, { "cite": "656 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640334, 12640335 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0281-01", "/se2d/656/0281-02" ] }, { "cite": "362 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640330, 12640331, 12640332, 12640333, 12640334, 12640211, 12640351 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0279-02", "/se2d/656/0280-01", "/se2d/656/0280-02", "/se2d/656/0280-03", "/se2d/656/0281-01", "/se2d/655/0406-01", "/se2d/656/0592-02" ] }, { "cite": "649 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639267 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "648" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0646-01" ] }, { "cite": "673 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642974 ], "year": 2009, "pin_cites": [ { "page": "767", "parenthetical": "citing State v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648, disc. review denied, 362 N.C. 89, 656 S.E.2d 281 (2007)" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0765-01" ] }, { "cite": "172 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561475 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0381-01" ] }, { "cite": "250 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "231", "parenthetical": "citing State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970)" } ], "opinion_index": 0 }, { "cite": "296 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566356 ], "year": 1979, "pin_cites": [ { "page": "399", "parenthetical": "citing State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0394-01" ] }, { "cite": "360 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793248, 3798279, 3786824, 3790261, 3788311, 3787422 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0066-02", "/nc/360/0066-06", "/nc/360/0066-04", "/nc/360/0066-03", "/nc/360/0066-01", "/nc/360/0066-05" ] }, { "cite": "546 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "page": "375" }, { "page": "375" }, { "page": "511" }, { "page": "375-76" }, { "page": "374", "parenthetical": "\" 'And you heard her words through Officer Barros, because the Court let you hear it, because the Court found that they were trustworthy and reliable.' \"" } ], "opinion_index": 0 }, { "cite": "353 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135708 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "509" }, { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0504-01" ] }, { "cite": "565 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "702", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079755 ], "year": 2002, "pin_cites": [ { "page": "192", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0185-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "357" }, { "page": "514" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] }, { "cite": "557 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364175 ], "year": 2001, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0135-01" ] }, { "cite": "560 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "209" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9126560 ], "year": 2002, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0200-01" ] }, { "cite": "185 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212517 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "702" }, { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0701-01" ] }, { "cite": "195 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164237 ], "year": 2009, "pin_cites": [ { "parenthetical": "citing State v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648, disc. review denied, 362 N.C. 89, 656 S.E.2d 281 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0740-01" ] }, { "cite": "384 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487808, 2489862, 2491701, 2490491, 2492671 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0275-03", "/nc/325/0275-01", "/nc/325/0275-04", "/nc/325/0275-02", "/nc/325/0275-05" ] }, { "cite": "277 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "397", "parenthetical": "stating that \"cumulative or corroborative evidence\" does not require the reopening of a suppression hearing pursuant to N.C. Gen. Stat. \u00a7 15A-975(c)" } ], "opinion_index": 0 }, { "cite": "303 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571552 ], "year": 1981, "pin_cites": [ { "page": "124", "parenthetical": "stating that \"cumulative or corroborative evidence\" does not require the reopening of a suppression hearing pursuant to N.C. Gen. Stat. \u00a7 15A-975(c)" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0112-01" ] }, { "cite": "380 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "367" }, { "page": "367" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526518 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "32" }, { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0020-01" ] }, { "cite": "298 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "198" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519715 ], "year": 1982, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0150-01" ] } ], "analysis": { "cardinality": 1134, "char_count": 38651, "ocr_confidence": 0.747, "pagerank": { "raw": 6.555949484723828e-08, "percentile": 0.4018286394303297 }, "sha256": "0b05ac08b919ae3a037ea528f25b45ad1f9d3284a5a16e31e1bdf06e933a7fdb", "simhash": "1:23e8e220727e0476", "word_count": 6229 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KERRY JAMES WADE" ], "opinions": [ { "text": "ERVIN, Judge.\nOn 15 September 2007, the Burlington Police Department issued a \u201cbe on the lookout\u201d alert for the owner of a green Saturn bearing a specific license plate number and registered to Aaron Daniel Zachary, a twenty-six-year-old white male (Zachary). Zachary had been reported as missing by his parents, who did not know where he was and believed that he was in danger.\nWhile investigating an unrelated incident on South Mebane Street, Officer Tom Meisenbach of the Burlington Police Department (Officer Meisenbach) observed a green Saturn bearing the license plate number specified in the missing person report drive by. As a result of the fact that Zachary\u2019s photograph had been distributed earlier that day, Officer Meisenbach knew that the missing person was a white male. At the hearing conducted for the purpose of addressing Defendant\u2019s suppression motion, Officer Meisenbach testified that, when he saw the green Saturn drive by:\nI noticed it was being driven by a black male and there was a white male in the back passenger seat. .. [and] a white female in the front right passenger seat.... And I remember thinking it was really odd because Mr. Zachary was a white male and it was his tag. . . . And I thought it was kind of odd that the vehicle was being driven by a black male, especially. And so I got on the radio and called for any officer in the area. . . . Corporal White answered up.\nOfficer Meisenbach acknowledged that he did not suspect illegal activity when he initially spotted the vehicle. Although Officer Meisenbach did not have any indication that Zachary was at risk, he stated that \u201cit did cross my mind\u201d that he might be in some sort of trouble.\nMeanwhile, Corporal Billy White of the Burlington Police Department (Corporal White) pulled behind the green Saturn. Officer White noted that the \u201c[vehicle] was in the place where [Zachary] was reported missing.\u201d Though Zachary did not appear to be subject to any sort of restraint, Officer White decided to detain the driver, who turned out to be the defendant, Kerry James Wade, and investigate further. At trial, Officer White testified that:\nI observed Mr. Zachary in the back getting out. Observed Mr. Wade getting out. I asked Mr. Wade for some identification. He asked me why. I told him that I was investigating a crime being involved \u2014 or reported for that car. I didn\u2019t tell him about Mr. Zachary at that minute.\nAs the driver exited the green Saturn, Corporal White testified that he saw the driver drop a tan rock-like substance. Corporal White believed the substance to be crack cocaine. When asked whether Defendant was free to leave prior to dropping the substance, Corporal White responded in the negative.\nUpon Officer Meisenbach\u2019s arrival, Corporal White directed Defendant to the rear of the vehicle and instructed Officer Meisenbach to frisk Defendant for weapons and to detain him. At trial, Officer Meisenbach stated that:\nI don\u2019t remember exactly what Corporal White instructed me initially, but I went ahead and asked for consent to search him for any drugs or weapons or anything like that. He denied it and said I had no reason to. And then a minute later, Corporal White came back around the front of \u2014 to the back of the car where I was and told me to go ahead and frisk Mr. Wade. \u25a0\nAt that time, I asked Mr. Wade to put his hands on the vehicle and I proceeded to do a pat-down on the exterior clothing, at which point Mr. Wade turned around and actually slapped my hands and became very verbally aggressive and stated I had no reason to frisk him.\nAfter that, according to Officer Meisenbach\u2019s trial testimony:\nI asked him to put his hands on the car again. At that time, Corporal White came back to the back of the car again. And I honestly don\u2019t recall exactly where Corporal White was standing initially. But he came back and told Mr. Wade to put his hands on the car because we needed to frisk him for weapons. I started to do it and, again, Mr. Wade turned around and, quite literally, slapped my hands. At that point, Corporal White and I told him he was being detained. And after a brief struggle, we placed him in handcuffs at the back of the vehicle.\nCorporal White noted that he observed a physical altercation between Defendant and Officer Meisenbach, so he assisted Officer Meisenbach in handcuffing Defendant.\nWhile Officer Meisenbach continued to pat Defendant down, Corporal White picked up the substance that had been dropped on the ground and placed it into his pocket. Corporal White reported submitting the substance retrieved from Defendant\u2019s pocket to Officer Meisenbach. Officer Meisenbach, on the other hand, testified:\nA. Again, I don\u2019t remember the specific wording, but as [Officer White] approached, he came back and said, well, he\u2019s under arrest now. He dropped a crack rock over there.\nQ. Right. He told you this stuff.\nA. Yes.\nQ. He didn\u2019t show you where the rock was.\nA. No.\nQ. He didn\u2019t show you the rock.\nA. No.\nQ. You don\u2019t know where the rock is.\nA. No.\nDuring the pat down, Officer Meisenbach seized a plastic bag containing what appeared to be cocaine and a glass smoking pipe from Defendant\u2019s pants pocket. Sheila Bayler, a chemist employed by the State Bureau of Investigation, analyzed the substance retrieved from Defendant\u2019s pocket and testified that it contained cocaine base weighing 0.7 grams.\nOn 15 September 2007, a warrant charging Defendant with felonious possession of cocaine and possession of drug paraphernalia was issued. On 22 January 2008, the Alamance County grand jury indicted Defendant for felonious possession of cocaine and possession of drug paraphernalia. In addition, the grand jury returned a bill of indictment charging Defendant with having attained the status of an habitual felon.\nPrior to trial, Defendant filed a motion to suppress the cocaine and glass smoking pipe seized from his person. In his suppression motion, Defendant asserted that the \u201csearch and seizure was not incident to an arrest or inventory... [and] was without probable cause or legal justification.\u201d After an evidentiary hearing held prior to the selection of a jury, the trial court denied Defendant\u2019s suppression motion. In its order denying Defendant\u2019s suppression motion, which was dictated into the record after the jury had begun its deliberations, the trial court found as fact that:\n1. On September 15, 2008, before going on patrol, Officer Meisenbach of the Burlington Police Department received a \u201cbe on the lookout\u201d for a green Saturn automobile which included a specific license plate number and a photograph of a person reported to be missing that was connected with this automobile.\n2. While out of his patrol car investigating an unrelated matter at Garden Apartments on South Mebane Street, Officer Meisenbach saw a vehicle matching the description given to him before he went on his shift and also recognized one of the passengers from a photograph previously provided.\n3. He radioed for assistance for some other officer to check the vehicle he had seen.\n4. Officer White responded to the call and pulled in behind the green Saturn as it parked in a parking lot. The Defendant Wade was the driver and a white female was in the front passenger seat, a white male in the rear passenger seat.\nDuring an interaction with the driver, that is, the Defendant Wade, about the identification, Officer White saw the defendant drop what he knew to be a cocaine \u201ccrack rock.\u201d Put crack rock in quotes.\nNext number. By the time Officer Meiseribach had arrived, he was asked by Officer White to pat down the Defendant Wade for weapons. During the pat down a plastic bag containing what appeared to be cocaine was found along with a glass smoking pipe.\nDefendant \u2014 thereafter, Defendant Wade was arrested for possession.\nBased upon these findings of fact, the trial court concluded as a matter of law that, \u201cbased upon the \u2018be on the lookout\u2019 the officers had authority to make a brief investigative stop of the vehicle described;\u201d that, \u201cas a consequence of the stop[,] Officer White personally observed the defendant in violation of the state law with regard to the possession of cocaine;\u201d that, \u201c[a]t that point[,] Officer White had authority to arrest the Defendant Wade based upon his personal observation;\u201d and that \u201c[n]one of the defendant\u2019s Constitutional rights with regard to search and seizure were violated by the brief investigatory stop that led to his arrest.\u201d\nAfter the trial court denied Defendant\u2019s motion to suppress, the case came on for trial before a jury. As soon as the jury was allowed to begin its deliberations and immediately prior to the dictation of the trial court\u2019s findings of fact and conclusions of law concerning Defendant\u2019s motion to suppress, the following colloquy occurred between Defendant\u2019s trial counsel and the trial court:\nMR. MARTIN: Judge, I would make a further motion at this time to adopt the trial testimony as part of the evidence provided in the motion to suppress in that the evidence of the second police report \u2014 supplemental police report of Officer Meisenbach had been provided to me in between the time of the motion and the trial and there was additional cross-examination, additional testimony which could go to the question in front of the Court. I would just ask that the Court adopt' that as part of th\u00e9 evidence.\nTHE COURT: I don\u2019t think \u2014 its in the record. Whether I adopt it or not I don\u2019t think makes any difference. I \u2014 it does not affect my ruling\u2014\nMR. MARTIN: I understand.\nAt that point, the trial court dictated its findings of fact and conclusions of law addressing the issues raised by Defendant\u2019s suppression motion into the record.\nOn 3 June 2008, the jury convicted Defendant of felonious possession of cocaine and possession of drug paraphernalia. After finding that Defendant had a Prior Record Level of VI and after accepting Defendant\u2019s admission to having attained habitual felon status, the trial court sentenced Defendant to a minimum term of 168 months and a maximum term of 211 months imprisonment in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court\u2019s judgment.\nRenewed Motion to Suppress\nIn his first argument, Defendant contends that the court erred by failing to consider the trial testimony in deciding his renewed motion to suppress the evidence obtained during the search of his person during his detention by the investigating officers. In support of this contention, Defendant relies on N.C. Gen. Stat. \u00a7 15A-975(c), which provides that, \u201cupon a showing by the defendant[] that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, he may permit the defendant to renew the motion . . . .\u201d After careful consideration of Defendant\u2019s contentions, we conclude that the trial court did not err.\nAccording to established North Carolina law, a trial judge may allow a defendant to renew an unsuccessful pretrial suppression motion in the event that the defendant shows that he or she has discovered additional pertinent information that could not have been obtained through the exercise of due diligence by the time of the trial court\u2019s ruling on the defendant\u2019s pretrial suppression motion. State v. Blackwood, 60 N.C. App. 150, 152, 298 S.E.2d 196, 198 (1982); N.C. Gen. Stat. \u00a7 15A-975(c). A trial court\u2019s ruling on a request to renew a pretrial motion to suppress is subject to appellate review under an abuse of discretion standard. State v. Marshall, 94 N.C. App. 20, 32, 380 S.E.2d 360, 367 (1989). As a result, the issue before this Court is whether the trial court abused its discretion by concluding that the testimony of Corporal White and Officer Meisenbach at trial contained \u201cadditional-pertinent information\u201d not included in their testimony at the hearing held for the purpose of considering Defendant\u2019s pretrial suppression motion.\nAccording to Defendant, the evidence received at trial \u201crevealed significant new information calling into question both the Superior Court\u2019s finding of fact that Officer White saw [Defendant] drop a crack rock while interacting with [Defendant] regarding the identification of [Zachary] and the Superior Court\u2019s conclusion of law that none of [Defendant\u2019s] constitutional rights were violated by the investigatory stop.\u201d More particularly, Defendant contends that, during the pretrial hearing on his suppression motion, Officer White provided testimony that he immediately saw Defendant drop a \u201ccrack rock\u201d as he approached the vehicle to inquire about the missing person. Defendant further contends that Corporal White contradicted this statement during his trial testimony by testifying that he was already aware that the male passenger was the missing person at the time that he approached the green Saturn and that Defendant discarded the crack rock after being informed that the officer was conducting a criminal investigation involving the car. Defendant further notes that, at the pretrial suppression hearing, Corporal White testified that he \u201casked Officer Meisenbach to frisk [Defendant] for any weapons because he was going to be detained.\u201d Officer Meisenbach, on the other hand, stated that he initially sought Defendant\u2019s consent to search and that Officer White subsequently \u201ccame back to the car . . . [and] at that time. . . informed [him] that [Defendant] was under arrest. . . [because] he had dropped a crack rock when he got out of the vehicle.\u201d Finally, despite Corporal White\u2019s testimony to the contrary, Defendant contends that the evidence received at trial indicates that Corporal White never showed the alleged dropped crack rock to Officer Meisenbach or presented the alleged crack rock for admission into evidence. As a result, Defendant contends that the testimony received at trial constituted additional pertinent information that the trial court should have considered in ruling upon the admissibility of the cocaine and the pipe seized from Defendant\u2019s person.\nAfter carefully reviewing the record, we have not identified any additional pertinent information discovered during the trial that necessitated a reopening of the record or a reconsideration of the trial court\u2019s initial decision to deny Defendant\u2019s suppression motion. As we understand Defendant\u2019s argument, the additional pertinent information upon which Defendant relies consists of alleged inconsistencies between the testimony received at the pretrial suppression hearing and at trial concerning the point in time at which Defendant allegedly dropped a crack rock, the reason that Corporal White gave for detaining Defendant, and the extent to which Corporal White did or did not show the alleged dropped crack rock to Officer Meisenbach coupled with the State\u2019s failure to seek the admission of the alleged dropped crack rock into evidence. Although Defendant\u2019s argument is not entirely clear, it appears that he is contending that the alleged inconsistencies between the testimony offered by the investigating officers at the pretrial suppression hearing and at trial constituted \u201cadditional pertinent information\u201d because they cast serious doubt upon the investigating officers\u2019 credibility.\nAfter careful consideration of the record and briefs, we conclude that a number of the alleged inconsistencies do not involve contradictions of the type claimed by Defendant. For example, despite Defendant\u2019s claim that Corporal White testified at the suppression hearing that he did not know that the rear seat passenger was Zachary while testifying at trial that he knew Zachary was the passenger, the record does not actually indicate at any point that Corporal White definitely knew that Zachary was in the rear passenger seat at the time that he approached the car. Similarly, the record does not reflect that Corporal White ever testified during the suppression hearing that the events that he described at trial as having occurred at the time that he approached the green Saturn and began his interactions with Defendant did not occur. Moreover, Corporal White never testified at trial that he did not put the crack rock that Defendant allegedly dropped \u201cinto evidence;\u201d instead, he simply stated at trial that he did not have the substance in the courtroom. Finally, Defendant has not pointed us to any portion of Corporal White\u2019s testimony at either the suppression hearing or at trial in which he claimed to have given the crack rock that Defendant allegedly dropped (as compared to the cocaine base later seized from Defendant\u2019s person) to Officer Meisenbach. As a result, it is not clear to us that the alleged inconsistencies upon which Defendant relies actually involved differences between the investigating officers\u2019 testimony at the suppression hearing and during the trial.\nEven if the record does, in fact, reflect the existence of the inconsistencies between the testimony of Corporal White and Officer Meisenbach at the suppression hearing and at trial as Defendant contends, we do not believe that these inconsistencies sufficed to constitute additional pertinent information of the type contemplated by N.C. Gen. Stat. \u00a7 15A-975(c). At best, the inconsistencies upon which Defendant relies were relatively minor and did not implicate the basic facts upon which the trial court relied in denying Defendant\u2019s pretrial motion to suppress, which were that the investigating officers initially stopped the green Saturn to investigate a missing person report, that Defendant was asked to get out of the vehicle as part of the investigating officers\u2019 response to the missing person report, that Defendant dropped what Corporal White believed to be a crack rock as he exited the green Saturn, and that a search incident to arrest following the discovery of the dropped crack rock resulted in the discovery of cocaine base and a pipe on Defendant\u2019s person. Although actual inconsistencies between the investigating officers\u2019 testimony at the pretrial suppression hearing and at trial relating to the central issues that the trial court was required to decide in ruling upon Defendant\u2019s pretrial suppression motion upon which Defendant relies in this Court might have constituted \u201cadditional pertinent information\u201d under N.C. Gen. Stat. \u00a7 15A-975(c), none of the alleged inconsistencies upon which Defendant appears to rely are material in and of themselves. Furthermore, after hearing the investigating officers\u2019 trial testimony, the trial court specifically stated on the record that the additional testimony did not impact its previous decision to deny the motion. Finally, Defendant\u2019s trial counsel cross-examined the investigating officers concerning alleged inconsistencies between their testimony at the suppression hearing and information contained in a written police report. State v. Bracey, 303 N.C. 112, 124, 277 S.E.2d 390, 397 (1981) (stating that \u201ccumulative or corroborative evidence\u201d does not require the reopening of a suppression hearing pursuant to N.C. Gen. Stat. \u00a7 15A-975(c)); Marshall, 94 N.C. App. at 32, 380 S.E.2d at 367, disc. review denied 325 N.C. 275, 384 S.E.2d 526 (1989) (stating that where \u201c[a]ll of the information [in a supplemental report alleged to constitute material newly discovered evidence] was brought out through testimony of the officers at the pre-trial suppression hearing,\u201d there was no basis for reopening a suppression hearing pursuant to N.C. Gen. Stat. \u00a7 15A-975(c)). As a result, for all of these reasons, we are unable to say that the trial court abused its discretion by concluding that the alleged inconsistencies upon which Defendant relies did not constitute \u201cadditional pertinent information\u201d of the type contemplated by N.C. Gen. Stat. \u00a7 15A-975(c).\nIn addition, we are not persuaded by Defendant\u2019s assertion that the trial court \u201cmisunder[stood] the suppression determination to be a sufficiency of the evidence determination rather than a determination of credibility, weight of the evidence, and proof....\u201d On the contrary, the record clearly reflects that the trial court understood that one of its functions at the suppression hearing was to make any necessary credibility determinations. During a colloquy that occurred prior to the suppression hearing, the following exchange took place:\nTHE COURT: Put them on [sic] stand and see what they say.\nMR. MARTIN: Yes, sir.\nTHE COURT: And the motion alleges that there was no basis for the traffic stop; is that essentially what this is about?\nMR. MARTIN: Judge, yes, that there\u2019s no basis for the traffic stop and also that there was no basis for the personal search of my client. There are \u2014 we have inconsistent reports between the officers.\nTHE COURT: Well, forget the reports. We\u2019re going to find out\u2014\nMR. MARTIN: I understand.\nTHE COURT: \u2014we\u2019re going to find out under oath here what went on.\nMR. MARTIN: Yes, sir, I understand. But upon information and belief\u2014\nTHE COURT: You know, the trouble with all this discovery business is this. You can talk to a witness five times; you get five different stories, you know.\nMR. MARTIN: Yes, sir.\nAlthough the trial court did, at one point, sustain the State\u2019s objection to cross-examination questions intended to show inconsistencies between the testimony of Corporal White and information contained in certain police reports by stating \u201cI\u2019m not a jury,\u201d that comment does not in any way tend to show anything more than the trial court\u2019s preference that Defendant\u2019s trial counsel \u201c[m]ove on to something else\u201d rather than a statement that the trial court did not believe that it had the responsibility of making a credibility determination as part of the process of deciding Defendant\u2019s suppression motion. Similarly, the trial court\u2019s statements that the \u201cOfficer\u2019s testified he saw it drop,\u201d that \u201cI\u2019m going to let you have at him in front of the jury,\u201d and that \u201cthere\u2019s sufficient evidence to warrant going forward with the case\u201d cannot be fairly read as a disclaimer of any obligation on the part of the trial court to make needed credibility determinations. On the contrary, the trial court\u2019s statement is nothing more than an announcement that the trial court was satisfied that the evidence supported allowing the jury to hear the testimony of the investigating officers concerning their search of Defendant, which is an entirely different matter. As a result, Defendant\u2019s challenge to the trial court\u2019s refusal to reopen the suppression hearing cannot be sustained.\nMotion to Suppress\nNext, Defendant challenges the trial court\u2019s refusal to suppress the evidence seized from Defendant\u2019s person during the investigatory stop. After careful consideration, we conclude that the trial court\u2019s decision to deny Defendant\u2019s suppression motion is not subject to reversal on appeal.\n\u201cWhen reviewing [an appellate challenge to the denial of a] motion to suppress, the trial court\u2019s findings of fact are conclusive and binding on appeal if supported by competent evidence.\u201d State v. Fields, 195 N.C. App. 740, 742-43 673 S.E.2d 765, 767 (2009) (citing State v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648, disc. review denied, 362 N.C. 89, 656 S.E.2d 281 (2007)). On the other hand, a trial court\u2019s conclusions of law in an order denying a motion to suppress are subject to de novo review. Edwards, 185 N.C. App. at 702, 649 S.E.2d at 648 (quoting State v. Chadwick, 149 N.C. App. 200, 202, 560 S.E.2d 207, 209 (2002)). As a result of the fact that Defendant has not challenged any of the trial court\u2019s findings of fact, we must decide the issues raised by Defendant\u2019s challenge to the trial court\u2019s order denying his motion to suppress on the basis of the facts found by the trial court.\nIn challenging the trial court\u2019s decision to deny his suppression motion, Defendant essentially argues that the investigating officers had unlawfully detained Defendant prior to the point at which Defendant allegedly dropped the crack rock and that the discovery of the cocaine base and the pipe were the fruits of this unlawful detention. After careful consideration of Defendant\u2019s arguments on appeal, we disagree.\nWarrantless searches are presumed to be unreasonable and therefore violative of the Fourth Amendment of the United States Constitution. State v. Logner, 148 N.C. App. 135, 139, 557 S.E.2d 191, 194 (2001). However, there are \u201ca few specifically established and well-delineated exceptions,\u201d Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967). When, for example, officers believe that persons in the premises to be searched are in need of immediate aid or where there is a need to protect or preserve life or prevent serious injury, a warrantless search of the location in question does not violate the Fourth Amendment. State v. Phillips, 151 N.C. App. 185, 192, 565 S.E.2d 697, 702 (2002) (citations omitted).\nAccording to the trial court\u2019s findings, the initial stop of the green Saturn which Defendant was driving stemmed from the \u201cbe on the lookout\u201d message provided to officers of the Burlington Police Department. Having received such a missing person report regarding Zachary, it was perfectly appropriate for Officer Meisenbach and Officer White to temporarily prevent the green Saturn from being driven off, detain the occupants, and make sure that Zachary was not in any danger of harm. Although Defendant does not appear to dispute the appropriateness of the officers\u2019 initial decision to prevent the green Saturn from being driven off, he contends that the fact that Zachary did not appear, at the time that he exited the vehicle, to have been battered or restrained against his will eliminated the necessity for further investigative activities and that all such activities should have ceased as soon as these facts became apparent. Thus, Defendant\u2019s ultimate complaint is that the investigating officers exceeded the scope of the investigative activities that they were allowed to undertake in light of the \u201cbe on the lookout\u201d message.\nAccording to the \u201cbe on the lookout\u201d report, Zachary\u2019s parents \u201cbelieved him to be at risk,\u201d \u201chad no idea where he was,\u201d and were concerned that \u201che was possibly frequenting drug areas within the city.\u201d At the time that Officer Meisenbach saw Zachary in the green Saturn, he was riding in the back seat of his own vehicle, which was being driven by Defendant. The mere fact that the investigating officers saw no indication that Zachary had sustained personal harm or that he was under direct physical restraint at the time that he exited the vehicle simply did not suffice to render further investigative activities inappropriate, given the concerns relayed to investigating officers that Zachary might have been at risk of harm or consorting with individuals with illegal drug involvement. For example, the investigating officers were entitled to make further inquiry as to whether Zachary was subject to some form of restraint other than direct physical confinement or whether he was in danger of harm as the result of drug consumption by himself or someone else, such as the driver of his automobile. For that reason, the actions of the investigating officers in continuing to look into the situation in which Zachary found himself after Zachary exited the vehicle did not exceed constitutional limitations. We therefore overrule this assignment of error.\nProsecutorial Question Concerning Trial Court\u2019s Finding of Probable Cause\nFinally, Defendant argues that the trial court erred by allowing the prosecutor to disclose the trial court\u2019s finding that investigating officers had probable cause to search Defendant to the jury at trial. During redirect examination, the prosecutor posed the following question to Officer White in the presence of the jury:\nQ. Okay. Now, with respect to the probable cause Mr. Martin\u2019s asked you about, are you aware that at a previous time in a court of law, a superior court judge had found probable cause?\nMR. MARTIN: Objection. Objection. Move to strike. Ask for mistrial.\nTHE COURT: What was your question?\nMR. MARTIN: Judge, I\u2019d like this to be made outside the hearing of the jury.\nTHE COURT: Step up here, please.\n(There was a Bench conference with Mr. Boone and Mr. Martin in attendance.)\nTHE COURT: Overruled. Motion denied.\nAccording to Defendant, the trial court\u2019s failure to sustain his objection to this question impermissibly allowed the State to place the trial court\u2019s opinion that there was probable cause for the search of Defendant and the seizure of the cocaine base and pipe that underlay the State\u2019s charges against Defendant before the jury.\nAs a general proposition, \u201cthe trial judge\u2019s legal determination or opinion on the evidence made during a hearing properly held outside the jury\u2019s presence\u201d should not be disclosed to the jury. State v. Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 375 (2001), disc. review denied and appeal dismissed 360 N.C. 66, 621 S.E.2d 878 (2005). As a result, \u201c[pjarties in a trial must take special care against expressing or revealing to the jury legal rulings which have been made by the trial court, as such disclosures will have the potential for special influence with the jury.\u201d Id. at 509-10, 546 S.E.2d at 375. The Supreme Court reached this conclusion on the grounds that prosecutorial comments disclosing a trial judge\u2019s legal ruling, even though that ruling was not directly stated by the trial court, had \u201cvirtually the same effect\u201d as an expression of the trial court\u2019s opinion as to the \u201ccredibility of evidence that was before the jury.\u201d Id. at 511, 546 S.E.2d at 375-76. Such conduct indirectly results in a violation of N.C. Gen. Stat. \u00a7 15A-1222, which provides that \u201c[t]he judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d\nAn examination of the relevant portion of the record establishes that the prosecutor\u2019s question impermissibly disclosed the trial court\u2019s finding that the investigating officers had probable cause to search Defendant to the jury. Although the prosecutor\u2019s assertion that the investigating officers had probable cause to search Defendant is not as direct an affirmation of the credibility of the evidence proffered by the State as the comment at issue in Allen, 353 N.C. at 508, 546 S.E.2d at 374 (\u201c \u2018And you heard her words through Officer Barros, because the Court let you hear it, because the Court found that they were trustworthy and reliable.\u2019 \u201d), we agree with Defendant that the prosecutor\u2019s assertion that a finding that the investigating officers had probable cause to search Defendant is difficult to distinguish from a favorable comment on the credibility of the State\u2019s witnesses given the facts of this case. As a result, the trial court erred by overruling Defendant\u2019s objection to and denying Defendant\u2019s motion to strike the prosecutor\u2019s comment.\nEven so, the mere asking of a question, without more, does not ordinarily result in sufficient prejudice to a defendant to necessitate a new trial. State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979) (citing State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970)). In order to demonstrate that a trial court\u2019s error was prejudicial, a defendant must show that there is a reasonable possibility that a different result would have been reached in the absence of the trial court\u2019s error. N.C. Gen. Stat. \u00a7 15A-1443(a).\nAfter careful consideration of the record, we cannot conclude that there is a reasonable possibility that the jury would have reached a different result at trial had the prosecutor not made the challenged comment. Unlike the situation in Allen, the comment was embodied in a question that was never answered. Moreover, unlike the situation in Allen, the challenged comment did not involve a direct assertion that the State\u2019s evidence was \u201ctrustworthy and reliable.\u201d In other words, despite the fact that Defendant clearly challenged the credibility of the account of the events that occurred at the time of the investigatory stop which led to Defendant\u2019s arrest, there is a material difference between the impact on the jury of evidence that a trial judge believed that the State\u2019s evidence was \u201ctrustworthy and reliable\u201d and evidence that the actions of the investigating officers were supported by \u201cprobable cause.\u201d Finally, although Defendant clearly claims that the investigating officers\u2019 claim that Defendant dropped a crack rock during the investigatory stop was a complete fabrication, it does not appear to us that Defendant is contending that the officers\u2019 contention that cocaine base and drug paraphernalia were found on his person was a fabrication as well. Given our determination that the trial court did not err in admitting the cocaine base and pipe seized at the time of the investigative stop, the evidence of Defendant\u2019s guilt is simply overwhelming. As a result, for all of these reasons, we conclude that there is no reasonable possibility that the outcome at trial would have been different had the trial court sustained Defendant\u2019s objection and allowed Defendant\u2019s motion to strike the trial court\u2019s comment.\nAfter careful consideration of the record and briefs, we conclude that Defendant received a fair trial, free from prejudicial error. Thus, we further conclude that Defendant is not entitled to any relief on appeal.\nNO PREJUDICIAL ERROR.\nJudges ELMORE and STROUD concur.\n. Zachary claimed to have been outside the Saturn by the time that the officers arrived.\n. According to the record, the motion that Defendant actually made at trial was that the trial court \u201cadopt\u201d the evidence received at trial as part of the evidentiary record on the basis of which Defendant\u2019s suppression motion would be decided. However, both Defendant and the State have addressed this issue on appeal as if it involved a request to renew Defendant\u2019s suppression motion pursuant to N.C. Gen. Stat. \u00a7 15A-975(c). As a result, we will examine the arguments advanced by Defendant in support of this assignment of error as if his \u201cadoption\u201d request was a request to renew his suppression motion as authorized by N.C. Gen. Stat. \u00a7 15A-975(c).\n. After a careful review of the record, it is not clear to us that the events surrounding the dropping of the crack rock occurred in precisely the order outlined in Defendant\u2019s brief. In addition, the exact order of the events that occurred immediately before and after Defendant dropped the crack rock is not delineated in the trial court\u2019s order denying Defendant\u2019s suppression motion. However, we have chosen to address the argument advanced in Defendant\u2019s brief on the basis of an assumption that the facts are as the Defendant has outlined them in his arguments to this Court.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Johnson, for State.", "Kevin R Bradley, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KERRY JAMES WADE\nNo. COA08-1414\n(Filed 21 July 2009)\n1. Evidence\u2014 testimony \u2014 inconsistencies between suppression hearing and trial \u2014 additional pertinent information\nThe trial court did not abuse its discretion in a felonious possession of cocaine and possession of drug paraphernalia case by failing to consider trial testimony of two officers allegedly containing additional pertinent information not included in their testimony at the suppression hearing when deciding defendant\u2019s renewed motion to suppress the evidence obtained during the search of his person during his detention by the investigating officers because: (1) a review of the record revealed there was no additional pertinent information discovered during the trial that necessitated a reopening of the record or a reconsideration of the trial court\u2019s initial decision to deny defendant\u2019s suppression motion; (2) a number of the alleged inconsistencies in testimony do not involve contradictions of the type claimed by defendant; (3) even if the record reflected the existence of the inconsistencies between the testimony of the two officers at the suppression hearing and at trial, these inconsistencies did not constitute additional pertinent information of the type contemplated under N.C.G.S. \u00a7 15A-975(c); (4) defendant\u2019s trial counsel cross-examined the investigating officers concerning the alleged inconsistencies; and (5) contrary to defendant\u2019s assertion, the record reflected that the trial court understood that one of its functions at the suppression hearing was to make any necessary credibility determinations.\n2. Search and Seizure\u2014 warrantless search \u2014 motion to suppress \u2014 person in need of immediate aid or need to protect or preserve life or prevent serious injury\nThe trial court\u2019s decision to deny defendant\u2019s suppression motion in a felonious possession of cocaine and possession of drug paraphernalia case was not subject to reversal on appeal because: (1) warrantless searches are permissible when officers believe that persons in the premises to be searched are in need of immediate aid or where there is a need to protect or preserve life or prevent serious injury; and (2) although defendant contends the investigating officers exceeded the scope of the investigative activities that they were allowed to undertake in light of the \u201cbe on the lookout\u201d message, the mere fact that investigating officers saw no indication that the pertinent individual had sustained personal harm or that he was under direct physical restraint at the time that he exited the vehicle simply did not suffice to render further investigative activities inappropriate given the concerns relayed to investigating officers that the individual might have been at risk of harm or consorting with individuals with illegal drug involvement.\n3. Search and Seizure\u2014 informing jury that officers had probable cause to search \u2014 harmless error\nAlthough the trial court erred in a felonious possession of cocaine and possession of drug paraphernalia case by allowing the prosecutor to disclose the trial court\u2019s finding that investigating officers had probable cause to search defendant to the jury at trial, the error was not prejudicial because it cannot be concluded that there was a reasonable possibility that the jury would have reached a different result at trial had the prosecutor not made the challenged comment given the overwhelming evidence of defendant\u2019s guilt including the admission of the cocaine base and pipe seized at the time of the investigative stop.\nAppeal by Defendant from judgment entered 3 June 2008 by Judge William C. Griffin, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 6 May 2009.\nAttorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Johnson, for State.\nKevin R Bradley, for defendant." }, "file_name": "0257-01", "first_page_order": 283, "last_page_order": 299 }