No. COA04-1712 NINETEENTH-A DISTRICT
NORTH CAROLINA COURT OF APPEALS
***********************************************
STATE OF NORTH CAROLINA )
)
v. )
)
DANNY LEE CARTER, )
Defendant. )
_________________________________)
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APPELLANT-DEFENDANT’S BRIEF
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INDEX
Table of Authorities.................................ii
Questions Presented...................................1
Statement of the Case.................................2
Statement of Grounds for Appellate Review.............2
Statement of the Facts................................3
I. Malicious Conduct by a Prisoner ................3
II. Habitual Felon ................................10
Argument.............................................11
I. Pursuant to Rule 2 of the Rules of Appellate
Procedure, the Defendant seeks review of the
trial court‘s denial of his Motions to dismiss
on the grounds that the underlying seizure and
arrest were unlawful, because the officers
lacked both a reasonable suspicion and probable
cause to believe that Mr. Carter had committed a
crime and their conduct was not within the scope
of their employment. ..........................11
A. Request for Discretionary Review Pursuant to
Rule 2.....................................11
B. Argument...................................12
II. The trial court erred when it denied Defendant‘s
Motions to dismiss, because the State failed to
present sufficient evidence of the requisite
mens rea to withstand the motions. ............17
Conclusion...........................................19
Certificate of Service...............................20
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TABLE OF AUTHORITIES
Cases
California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547,
113 L.Ed.2d 690 (1991) ............................ 17
Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76
L.Ed.2d 527 (1983) ................................ 16
State v. Chadwick, 149 N.C.App. 200, 560 S.E.2d 207,
disc. review denied, 355 N.C. 752, 565 S.E.2d 672
(2002) ............................................ 15
State v. Cooke, 49 N.C.App. 384, 271 S.E.2d 561 (1960)
.................................................. 17
State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971)
.............................................. 16, 17
State v. Riggs, 328 N.C. 213, 400 S.E.2d 429 (1991). 16
State v. Stephenson, 218 N.C. 258, 10 S.E.2d 819
(1940) ............................................ 19
State v. Whittle, 118 N.C.App. 130, 454 S.E.2d 688
(1995) ............................................ 19
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968) ........................................ 17
Constitutional Provisions
N.C. Const. Art. I, § 19............................ 15
N.C. Const. Art. I, § 20............................ 15
U.S. Const. Amend. IV............................... 15
U.S. Const. Amend. XIV.............................. 15
-iii-
Other Authorities
5 Am.Jur.2d Arrests § 44 (1962)..................... 16
Rules
N.C. R. App. P. 10 (2005)........................... 12
N.C. R. App. P. 2................................... 11
Statutes
N.C. Gen. Stat. § 11-11 (2004)...................... 16
N.C. Gen. Stat. § 14-258.4 (2004)........... 13, 15, 19
N.C. Gen. Stat. § 7A-27 (2004)....................... 2
N.C. Gen. Stat. 14-288.1(8) (2004).................. 14
No. COA04-1712 NINETEENTH-A DISTRICT
NORTH CAROLINA COURT OF APPEALS
***********************************************
STATE OF NORTH CAROLINA )
)
v. )
)
DANNY LEE CARTER, )
Defendant. )
_________________________________)
QUESTIONS PRESENTED
I. Pursuant to Rule 2 of the Rules of Appellate Proce-
dure, the Defendant seeks review of the trial court‘s
denial of his Motions to dismiss on the grounds that
the underlying detention and arrest were unlawful and
their conduct was not within the scope of their em-
ployment.
II. Whether the trial court erred when it denied Defen-
dant‘s Motions to dismiss, because the State failed to
present sufficient evidence of the requisite mens rea
to withstand the motions.
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STATEMENT OF THE CASE
Danny Lee Carter was convicted of Malicious Conduct by a
Prisoner and Habitual Felon status in consecutive trials by jury
during the August 9, 2004 Criminal Session of Cabarrus County
Superior Court, the Honorable Larry G. Ford, Judge Presiding.
(R. pp. 29-20.) Judge Ford found that Mr. Carter had a Prior
Record Level VI and sentenced him as a Class C felon to a mini-
mum of 140 months, maximum of 177 months in the North Carolina
Department of Corrections. (R. p. 36.) Mr. Carter gave oral No-
tice of Appeal in open court immediately after sentencing. (T.
p. 201, lines 14-15.)
The transcript was ordered on August 12, 2004 (R. p. 39),
and delivered on October 12, 2004. The parties settled the
Record by Agreement. (R. p. 42.) The settled Record was filed in
the Court of Appeals on December 22, 2004 and docketed on Janu-
ary 13, 2005. (R. p. 1) The Clerk mailed the printed Record on
Appeal on January 27, 2005.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
This appeal arises from the final judgment of the Superior
Court in a criminal matter following trial by jury. N.C. Gen.
Stat. § 7A-27(b)(2004) confers grounds for appellate review.
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STATEMENT OF THE FACTS
I. Malicious Conduct by a Prisoner
The Malicious Conduct by a Prisoner indictment charges that
Mr. Carter emitted bodily fluids on D.S. Lisk while Deputy Lisk
was performing his duties of arresting defendant for disorderly
conduct. (R. p. 3.)
Around 9:00 p.m. on April 14, 2004, Cabarrus County She-
riff‘s Deputies Chris Measimer and Dusty Lisk responded to a
drunk and disorderly call on Ray Linker Road in Cabarrus County.
They were told that a white male was in the road yelling about
Vietnam and that a woman had nearly hit the man with her car.
(T. p. 26, line 19-p. 27, line 20.) The two deputies were to-
gether when the call came and both responded, each in a separate
car. (T. p. 28, lines 2-3.) Deputy Measimer testified that the
officers thought the call as about ―kids acting crazy.‖ (T. p.
28, lines 16-17.)
When the deputies got to Ray Linker Road, they pulled into
Appellant Danny Lee Carter‘s driveway, ―right in front of his
residence,‖ with their headlights on. (T. p. 29, lines 12-14; p.
69, lines 6-7; and p. 80, lines 20-21.) The home was dark. (T.
p. 70, lines 22-23). There was no evidence why the deputies
pulled into Mr. Carter‘s driveway and searched around his home —
— a trailer —— on a call they believed was related to ―kids act-
ing crazy.‖ (T. p. 28, line 16.) Deputy Lisk knew Mr. Carter,
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who lived alone. (T. p. 69, line 8 and p. 103, lines 17-19.)
Deputy Measimer testified that they searched with flashlights in
ditches and under bushes in case someone had been hit by a car,
shining the lights on their search areas and on Mr. Carter‘s
home. (T. p. 28, lines 11-17 and p. 32, lines 15-16.)
As the officers stood in Mr. Carter‘s driveway beside their
cars, with headlights shining on Mr. Carter‘s unlit house, ac-
cording to their testimony, they heard a voice from the trailer
yell, ―F___ you, motherf______s.‖ (T. p. 29, line 1 and lines
10-15.) The deputies drew their guns. (T. p. 70, lines 2-4.)
Deputy Measimer moved into the line of the nearby woods and ap-
proached Mr. Carter‘s house from the right. (T. p. 29, lines 14-
21.) Deputy Lisk turned the patrol car spotlight on Mr. Carter‘s
front door, (T. p. 70, lines 14-15) and yelled, ―Where are you,
Danny?‖ even though there was no evidence that Danny Carter was
involved in the incident involving a white male in the road that
they had been called out to investigate. (T. p. 69, lines 20-21
and p. 29, lines 3-4.) Mr. Carter responded, ―F___ all you
f______s. I know you got your guns out.‖ (T. p. 29, lines 5-6.)
The deputies approached Mr. Carter‘s house from opposite
sides. (T. p. 71, lines 1-2.) Mr. Carter opened his front door
and stood inside the storm door, where he continued to curse the
approaching deputies. Deputy Measimer testified to the following
interchange as Mr. Carter stood in the doorway:
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Deputy Lisk asked him was he out in the roadway. He
continued just to respond with the normal, f___ you.
At that time we made the comment while we were there.
He still said it wasn‘t me. Said all right, fine. He
continued to keep cussing at us, upset that we were
there and that the lights were shining on his house.
T. p. 32, lines 11-16.
Deputy Measimer testified that some neighbors were standing
approximately 30-35 feet away from Mr. Carter‘s home, watching
what was going on. (T. p. 33, lines 3-5 ) Mr. Carter remained
inside his home, standing in the doorway with the storm door
closed. The officers saw that he did not have any type of wea-
pon. (T. p. 31, lines 17-23.)
As Mr. Carter stood inside his home, without invitation or
permission from Mr. Carter, Deputy Lisk opened the storm door
from where he stood at the side of the front steps. According to
Deputy Lisk‘s testimony, Deputy Measimer, who stood at the bot-
tom of the steps, told Mr. Carter that he ―was going to be
placed under arrest.‖ (T. p. 71, lines 7-14 and p. 72, lines 23-
25.) Deputy Lisk further testified that they did not immediately
arrest him, but attempted to question him about ―the situation
that we was called out to handle.‖ (T. p. 72, lines 15-19.) Mr.
Carter refused, with a curse, to speak to the officers. (T. p.
72, lines 23-24.)
The deputies then seized Mr. Carter and forcefully entered
his home. Deputy Measimer testified:
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At that time, I reached up, took hold of his right arm
with my left arm, took hold of it, started up the
steps, told him to come on out. From that point he
just bent his wrist around, took hold of my forearm
and pulled me into the doorway and slammed the door on
my arm.
…
At that point I threw my left shoulder, used my body
weight, threw my left shoulder into the door. I was
able to push the door open some to where I could[,]
him still holding my arm, but I could also see his
face. At that time I used a closed right fist and made
connection with his upper lip causing him to stumble
backwards into the house.
…
From there it‘s kind of strange. He actually calmed
down for a second. As he stumbled backwards he gained
control of himself, he walked over a few steps and sat
on his bed … . At that time he sat down and just
stated, f___ you, motherf_____, you hit hard. That‘s
the only thing he said.
… I went ahead and pulled out my flashlight. And I
just wasn‘t comfortable with the way he was acting.
Pulled my pepper spray out. I told him, I said, Danny,
it doesn‘t have to be like this. At that time he made
a few just comments about, you know, I ain‘t done
nothing, things like that.
Deputy Lisk immediately come in from behind me, went
counterclockwise, putting himself on Mr. Carter‘s left
hand side with me being on his right, you know, of
course with him in the middle. So we had him almost in
a, I guess a trap where he couldn‘t go in either di-
rection in attempt to run from us. We had him cornered
in.
T. p. 33, line 25-p. 35, line 14.
Deputy Lisk described the events following Mr. Carter‘s re-
fusal to talk as follows:
That‘s when he kept on and on cursing toward myself
and Officer Measimer and he was told he was going to
be placed under arrest. That‘s when Deputy Measimer
tried to grab hold of him.
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…
Once Deputy Measimer grabbed hold of him Mr. Carter,
he pushed the, not the storm door but the solid front
door of the house, he pushed it and it went on to his
arm and that‘s when Deputy Measimer had hit it [sic]
and Mr. Carter stumbled back. And then we went into
the house and Mr. Carter had walked, sat down on his
bed, which like I say, I mean his door is here (indi-
cating). He had a, his bed was longways on the wall
and there was a bar and then a kitchen area. He stum-
bled back and sat down on his bed with his hands in
front of him. He was not cuffed at that time though.
…
From where Mr. Carter was sitting, and I was standing
at — say if I‘m Mr. Carter sitting here (indicating),
I was over to his left hand side. Mr. Carter had stood
up and balled his fist and that‘s when the pepper
spray was administered onto him.
Q: And whose pepper spray was used?
A: Deputy Measimer‘s.
Q: And after that occurred you ultimately were able to
affect your arrest on –
A: Yes, sir. After trying to place him against the bar
after the spray was issued, trying to use hand tech-
niques to take him down, after a little scuffle we was
able to get him in handcuffs.
T. p. 72, line 25-p. 74, line 4.
Mr. Carter testified that he had been fishing at the river
most of the day before these events. He drank part of a pint of
bourbon while he fished and went to bed in his front room when
he got home around 8:00 p.m. (T. p. 94, lines 15-16 and p. 101,
lines 15-25.) As the deputies testified, the lights were off
when they arrived an hour later, because he was asleep. He was
wakened by the bright patrol car lights in his windows and heard
the deputies‘ radios. (T. p. 94, line 15-p. 95, line 2 and p.
102, lines 15-22.) Mr. Carter testified that he yelled ―Who the
- 8 -
hell is it?‖ through he window and the officers responded, ―You
know who it is.‖ He went to the door when an officer said they
needed to talk with him. He did not turn on the lights. (T. p.
102, line 17-p. 103, line 16.) Mr. Carter admitted that he had
―a few unpleasant words‖ for the officer as he stood in the
doorway. (T. p. 104, lines 1-4.) The officers did not begin to
arrest him until he turned to go back in the house. (T. p. 104,
lines 10-14.)
Mr. Carter said he went back inside without shutting the
door on Deputy Measimer‘s arm and that, in fact, it would have
been impossible to shut the door on his arm. After he shut the
door, it ―flew open and there [the deputies] come in like two
bulls.‖ (T. p. 104, line 10-p. 105, line 3.) Mr. Carter corrobo-
rated the deputies‘ testimony that as the deputies entered his
home, Deputy Measimer punched him and later sprayed him with
pepper spray inside the house. (T. p. 95, line 24-p. 96, line
7.)
The deputies testified that after Deputy Lisk ―took [Mr.
Carter] straight down to the ground, handcuffed him behind the
back and set him in an upright position,‖ they took him outside
and called the local volunteer fire department to decontaminate
him and check his bleeding lip where Deputy Measimer socked him.
Mr. Carter refused treatment. (T. p. 38, lines 1-21; p. 39,
lines 7-12, and p. 99, lines 23-24.)
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As the emergency responders attempted to treat Mr. Carter
for his split lip and the pepper spray, he refused. His nose was
dripping, his mouth was bleeding from being punched, and he
coughed a couple of times. (T. p. 107, lines 9-11.) Mr. Carter
testified that he refused treatment because he just wanted to go
back to bed. (T. p. 106, lines 12-15.) Deputy Measimer testified
that Mr. Carter ―wanted to be left alone,‖ but the deputies
wanted him treated for the pepper spray because of liability is-
sues. (T. p. 38, line 19 and p. 39, lines 11-12.) The deputy al-
so testified that Mr. Carter‘s lip appeared to need stitches
from being punched. (T. p. 43, lines 13-14.)
The deputies and James Blackwelder, a volunteer firefighter
who responded, testified that Mr. Carter appeared intoxicated.
His speech was slurred. He was swaying, walked unsteadily, sweat
profusely, smelled of alcohol, and was belligerent. When the of-
ficers placed him on the front steps to wait for the EMTs, he
could not sit steady and fell off the steps once. (T. p. 45,
lines 1-14; p. 53, line 2-7; p. 78, lines 5-19.)
Deputy Measimer testified that as Mr. Carter sat handcuffed
on the front steps, he ―snorted‖ mucous and blood from his nose
onto his lap. (T. p. 47, lines 9-15.) When Mr. Carter cursed the
EMTs who offered treatment, Deputy Lisk told him not to curse
them. Mr. Carter hocked and spit. The bloody spittle landed on
Deputy Lisk‘s left leg and right foot. Mr. Carter cursed Deputy
- 10 -
Lisk and said he caused all this. (T. p. 39, line 23-p. 40, line
4; p. 52, lines 7-14; and p. 75, lines 1-20.) Mr. Carter admit-
ted that he spit while sitting on the steps, but denied that he
intentionally spit on Deputy Lisk. (T. p. 107, lines 9-14.)
The jury found Mr. Carter not guilty of habitual misdemea-
nor assault or assault on a law enforcement officer while dis-
charging or attempting to discharge a duty of his office, but
guilty of malicious conduct by a prisoner. (R. p. 30.)
II. Habitual Felon
The court then proceeded to trial on the issue of Habitual
Felon Status. Cabarrus County Deputy Clerk Linda Troutman testi-
fied as record keeper. She identified State‘s Exhibits One
through Nine. The Exhibits are the certified copies of the
Clerk‘s records of charges, dispositions, and judgments related
to Mr. Carter‘s prior offenses. (R. pp. 8-22) Mrs. Troutman tes-
tified that they showed the following convictions:
Charge Disposition Date of Date of County/File #
Disposition Offense
Felonious Guilty plea 9/5/79 6/18/79 Cabarrus
Possession
of Stolen T. p. 172-
Goods 174.
Habitual Guilty plea 3/16/94 6/27/94 Cabarrus
Impaired 93-CRS-15728
Driving & 94-CRS-3341
T. p. 175-176
Habitual Guilty af- 1/14/2000 8/4/99 Cabarrus
Misdemeanor ter jury
Assault trial T. p. 176-177
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ARGUMENT
I. Pursuant to Rule 2 of the Rules of Appellate Procedure, the
Defendant seeks review of the trial court’s denial of his
Motions to dismiss on the grounds that the underlying sei-
zure and arrest were unlawful, because the officers lacked
both a reasonable suspicion and probable cause to believe
that Mr. Carter had committed a crime and their conduct was
not within the scope of their employment.
Assignment of Error No. 1
T. p. 92, lines 4-5 and pp. 115-120
A. Request for Discretionary Review Pursuant to Rule 2
Defendant‘s initial sole assignment of error, argued below,
contends that the trial court erred by denying his Motions to
Dismiss on the grounds that the State failed to prove the requi-
site mens rea for the offense. Defendant respectfully prays the
Court exercise its power under Rule 2 of the Rules of Appellate
Procedure, and consider a related argument that the trial court
erred by denying the Motions to Dismiss when the underlying sei-
zure and arrest were unlawful. Defendant submits to this Court
that suspension of the rules is required to prevent manifest in-
justice caused by counsel‘s inartful drafting of the Assignment
of Error. A full review of the Motion to Dismiss does not re-
quire any additional Record material, and creates no disadvan-
tage to the State.
- 12 -
B. Argument
Mr. Carter moved to dismiss the charges at the close of the
State‘s evidence and the close of all the evidence. (T. p. 84,
lines 17-19 and p. 115, lines 21-23.) Therefore, this error was
preserved at trial and is properly before the Court. N.C. R.
App. P. 10(b)(3) (2005).
At 9:00 p.m. on April 14, 2004, Cabarrus County Deputies
Lisk and Measimer responded to a call that a white male was yel-
ling in Ray Linker Road, a call Deputy Measimer testified they
believed was about ―kids acting crazy.‖ (T. p. 28, line 16.)
Deputy Lisk knew Danny Carter; Deputy Measimer had heard of him.
(T. p. 33, lines 15-16 and p. 69, line 8.) Despite the fact that
nothing tied this call to Mr. Carter, according to their own
testimony, the deputies pulled their patrol cars into Mr. Cart-
er‘s driveway; looked in roadside ditches and under bushes while
shining their headlights and ultimately the patrol car spotlight
on the darkened trailer home where Mr. Carter slept; approached
his home with guns drawn once they had awakened him; demanded
that he come out as he stood unarmed behind his storm door;
opened the storm door and grabbed his arm when he refused to
come out; forced their way into the home; bashed him in the
mouth and split his lip; when he retreated to his bed, stood on
each side of him so as to put him in ―a trap‖ (T. p. 35, line
13); wrestled him when he balled his fist; struck him in the
- 13 -
stomach with a flashlight; sprayed him with pepper spray; and
finally cuffed and arrested him. (T. p. 26, line 19-p. 27, line
20; p. 28, lines 11-20; p. 31, line 23; p. 33, line 25-p. 38,
line 5; p. 68, line 18-p. 71, line 14; p. 72, line 13-p. 74,
line 4.) This was not a lawful arrest; it was sport for these
deputies, totally unrelated to the call that brought them to Ray
Linker Road. This ―sport arrest‖ violated Mr. Carter‘s rights as
a citizen of the United States and North Carolina.
The deputies‘ conduct exceeded the scope of their duties as
employees of the Cabarrus County Sheriff‘s Department. Nothing
suggests that their targeting Mr. Carter was done in objective
or subjective good faith. Therefore, even though in uniform, the
deputies were not engaged in the performance of their duties, as
required to satisfy the elements of Malicious Conduct by a Pris-
oner. N.C. Gen. Stat. § 14-258.4 (2004).
The warrant charges Mr. Carter with spitting on Deputy Lisk
when he was performing his duties of ―arresting Defendant for
Disorderly Conduct.‖ (R. p. 3.) North Carolina law defines, the
offense of Disorderly Conduct in general terms as ―a public dis-
turbance,‖ and then lists specific conduct and places where this
public disturbance may occur. N.C. Gen. Stat. § 14-288.4 (2004).
―Public disturbance‖ is defined by law as:
Any annoying, disturbing, or alarming act or condition
exceeding the bounds of social toleration normal for
the time and place in question which occurs in a pub-
- 14 -
lic place or which occurs in, affects persons in, or
is likely to affect persons in a place to which the
public or a substantial group has access. The places
covered by this definition shall include, but not be
limited to, highways, transport facilities, schools,
prisons, apartment houses, places of business or
amusement, or any neighborhood.
N.C. Gen. Stat. 14-288.1(8) (2004).(Emphasis added.)
Thus, by definition, disorderly conduct must occur in a public
place or in a place where the public or a substantial group has
access. The deputies‘ testimony in this case shows that all of
Mr. Carter‘s conduct occurred in the private setting of his
home. While the statute covers conduct in a neighborhood, there
was no evidence in this case to show that the neighbors did any-
thing other than watch while the deputies baited and ultimately
arrested Mr. Carter. Because the deputies lacked probable cause
or even a reasonable suspicion that Mr. Carter had committed any
offense —— because they in effect goaded him into cursing them —
— his arrest was outside the scope of their duties and Mr. Cart-
er‘s alleged spitting does not violate N.C. Gen. Stat. § 14-
258.4. The officers‘ conduct violated Mr. Carter‘s right to be
free from unreasonable seizure and a warrantless arrest without
probable cause.
The Fourth Amendment of the United States Constitution pro-
tects citizens from unreasonable searches and seizure, and ap-
plies to States through the Due Process Clause of the Fourteenth
Amendment. U.S. Const. Amend. IV and XIV. The North Carolina
- 15 -
Constitution provides similar protections. See N.C. Const. Art.
I, § § 19, 20. An arrest founded upon probable cause or a deten-
tion based upon reasonable suspicion complies with these consti-
tutional protections. State v. Chadwick, 149 N.C.App. 200, 560
S.E.2d 207, disc. review denied, 355 N.C. 752, 565 S.E.2d 672
(2002).
Probable cause has been defined as ―‗a reasonable ground of
suspicion, supported by circumstances sufficiently strong in
themselves to warrant a cautious man in believing the accused to
be guilty.‘‖ State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364,
367 (1971) (quoting 5 Am.Jur.2d Arrests § 44 (1962)). Probable
cause requires ―a probability or substantial chance‖ of criminal
activity. State v. Riggs, 328 N.C. 213, 219, 400 S.E.2d 429, 433
(1991) (quoting Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103
S. Ct. 2317, 2334, n. 13, 76 L.Ed.2d 527, 552 n. 13 (1983)).
Granted, law enforcement officers must be able to respond
to the situations they encounter as they uphold their duties to
enforce the criminal laws of this state. See Law Enforcement Of-
ficer oath, N.C. Gen. Stat. § 11-11 (2004). Our Supreme Court
has said:
[P]robable cause for an arrest has been defined to be
a reasonable ground of suspicion, supported by cir-
cumstances sufficiently strong in themselves to war-
rant a cautious man in believing the accused to be
guilty. …‖The existence of ‗probable cause,‘ justify-
ing an arrest without a warrant, is determined by fac-
tual and practical considerations of everyday life on
- 16 -
which reasonable and prudent men, not legal techni-
cians, act. It is a pragmatic question to be deter-
mined in each case in the light of the particular cir-
cumstances and the particular offense involved.‖ (Em-
phasis supplied.) State v. Harris, 279 N.C. 307, 311,
182 S.E.2d 364, 367 (1971).
State v. Cooke, 49 N.C.App. 384, 391, 271 S.E.2d 561,
565 (1960)
A citizen may also be detained, but not arrested, when an
officer has a reasonable suspicion of criminal activity. Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A de-
tention will become an arrest, with or without the officer stat-
ing, ―You‘re under arrest,‖ when a reasonable person would no
longer believe that he or she is free to go.
The United States Supreme Court has held that ―the mere
grasping or application of physical force with lawful authority,
whether or not it succeed[s] in subduing the arrestee, [i]s suf-
ficient‖ to constitute an arrest. California v. Hodari D., 499
U.S. 621, 624, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690, 696
(1991). Thus, Mr. Carter was legally arrested when Deputy Lisk,
without invitation or permission, opened the storm door behind
which Mr. Carter stood and Deputy Measimer grabbed his arm. The
officers‘ subsequently creating a ―trap‖ by surrounding him as
he sat on his bed further illustrates that he was under arrest,
despite the fact that there was neither probable cause nor rea-
sonable suspicion that he had committed any crime.
- 17 -
In this case, the officers intentionally provoked a citizen
lawfully sleeping in his bed by pulling into his driveway —
wholly unconnected to the call to which they responded — shining
their lights in his darkened home where he slept, and so forth.
Their conduct in seizing and arresting Mr. Carter was unconsti-
tutional, unlawful, and outside the scope of their authority as
law enforcement officers. Because the arrest was wholly unlaw-
ful, they were not engaged in the performance of their duties as
required to convict Mr. Carter under N.C. Gen. Stat. 14-258.4
and the trial court erred by denying his Motions to Dismiss.
II. The trial court erred when it denied Defendant’s Motions to
dismiss, because the State failed to present sufficient
evidence of the requisite mens rea to withstand the mo-
tions.
Assignment of Error No. 1
T. p. 92, lines 4-5 and pp. 115-120
The act of emitting bodily fluid on a law enforcement of-
ficer must be knowing and willful to violate N.C. Gen. Stat. §
14-258.4 (2004). Our Supreme Court has examined the combined use
of these words in prior cases:
The word ―wilfully‖ … means something more than an in-
tention to commit the offense. It implies committing
the offense purposely and designedly in violation of
law. The word ―knowingly‖, as so used, means that de-
fendant knew what he was about to do, and, with such
knowledge, proceeded to do the act charged. These
words combined in the phrase ―wilfully and knowingly‖
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in reference to violation of the statute, mean inten-
tionally and consciously.
State v. Stephenson, 218 N.C. 258, ___, 10 S.E.2d 819,
823 (1940) [Defendant was charged with knowingly and
willfully submitted a false insurance claim. Citations
omitted.]
In State v. Whittle, 118 N.C.App. 130, 454 S.E.2d 688
(1995), this court held that an erroneous jury instruction de-
fining ―willful‖ required reversal and a new trial. The Whittle
court said that willful is properly defined as ―purposely and
designedly in violation of the law.‖ Id. at 136, 454 S.E.2d 692.
Thus, applying the Supreme Court‘s definitions in Stephenson and
this court‘s corresponding definition in Whittle, the State in
the case at bar would have to show that Mr. Carter ―purposely
and designedly in violation of law‖ spat on Deputy Lisk‘s foot.
The State did not meet its burden of proof with regard to
the knowing and willful element of the offense charged. Deputy
Measimer testified that as Mr. Carter sat handcuffed on the
front steps, he ―snorted‖ mucous and blood. (T. p. 47, lines 9-
15.) He had been punched in the mouth, needed stitches, and had
been sprayed with pepper spray. Although he and the deputies
testified the pepper spray had minimal effect, it is reasonable
to assume that the bloody mucous coming from his nose was likely
caused by irritation from the spray as much as from having his
lip busted. Mr. Carter cursed Deputy Lisk, but that does not
show purposeful and designed violation of law in the spitting.
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All of the facts and circumstances suggest a man who simply
wanted to go back inside and go back to bed, after being roused
and drawn out by these deputies. His every effort to do so was
thwarted by the deputies from the outset. The evidence, taken in
the light most favorable to the State, does not show the requi-
site mens rea for this offense. Thus, the trial court erred when
it denied Mr. Carter‘s motions to dismiss.
CONCLUSION
Wherefore, Defendant-Appellant respectfully prays this
Court:
1. Invoke this Court‘s power under Rule 2 of the Rules of
Appellate Procedure and review Defendant‘s first argument;
2. Hold that the trial court erred by denying Defendant‘s
Motions to Dismiss;
3. Reverse Defendant‘s convictions on all counts, including
the adjudication of Habitual Felon status; and
4. Grant Defendant-Appellant such other and further relief
as the Court deems just and proper.
Respectfully submitted this the 28th day of February 2005.
ELECTRONICALLY SUBMITTED
For the Defendant-Appellant
Leslie C. Rawls
Attorney at Law
PO Box 38325
Charlotte, NC 28278
704-583-1279
LeslieRawls@Carolina.rr.com
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CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing Appellant-
Defendant‘s Brief on all parties to this action by depositing a
copy of the document in the United States Mail, properly wrapped
with postage attached, addressed to:
Thomas H. Moore
Assistant Attorney General
North Carolina Department of Justice
PO Box 629
Raleigh, NC 27602-0629
This the 1st day of March 2005.
ELECTRONICALLY SUBMITTED
Leslie C. Rawls