State v. Burwell , 256 N.C. App. 722 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-89
Filed: 5 December 2017
Johnston County, No. 14CRS55454; 14CRS1967
STATE OF NORTH CAROLINA
v.
MARK BURWELL, Defendant.
Appeal by Defendant from judgments entered 26 May 2016 by Judge Walter
H. Godwin, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 7
June 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Ashish K.
Sharda, for the State.
Meghan Adelle Jones, for Defendant-Appellant.
MURPHY, Judge.
Mark Burwell (“Defendant”) appeals from his judgments for assault on a law
enforcement officer inflicting serious bodily injury and attaining habitual felon
status. On appeal, Defendant argues the following: (1) the trial court erred by
denying his Motion to Dismiss because he only used the amount of force reasonably
necessary to resist an unlawful arrest; (2) the trial court erred or plainly erred by
denying his Motion to Suppress and admitting evidence obtained as a result of an
unlawful arrest; (3) the trial court erred or plainly erred by failing to instruct the jury
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on the right to resist an unlawful arrest; and (4) the trial court erred or plainly erred
by failing to instruct the jury on the right to defend oneself from excessive force by a
law enforcement officer.
After careful review, we conclude Defendant received a fair trial, free from
error.
Background
At approximately 4 a.m. on 12 October 2014, Officer Sean Cook (“the Officer”)
arrived at Kay Drive in Smithfield, in reference to a 911 call reporting a suspicious
person who refused to leave the apartment complex. Kay Drive and the apartments
therein are subject to Section 8 housing. Section 8 of the United States Housing Act
of 1937, as amended in 1974, established “Section 8,” the federally subsidized housing
assistance payments program. See 42 U.S.C. § 1437f (2015). The Officer testified
that Smithfield police officers have an agency agreement with Kay Drive, wherein
they have the authority to remove trespassers from the property, as that section and
the apartments therein are subject to Section 8 housing.
The Officer was given information that the suspicious person was a male in his
thirties wearing all black, and could be found near or around an older model, black
truck. Upon his arrival, the Officer noticed Defendant, a male wearing all black
clothing, standing in front of an older model, black truck. The Officer determined
Defendant matched the description given to him by dispatch. He approached
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Defendant, and saw a beer can in Defendant’s hand. The Officer asked Defendant to
walk towards him, and Defendant complied. Seeing Defendant no longer held the
beer can, the Officer told Defendant to retrieve the can and dispose of it. Defendant
again complied. The Officer and Defendant spoke “at length[,]” and he could smell
the strong odor of an alcoholic beverage emitting from Defendant. Upon request,
Defendant provided the Officer with his identification.
Investigating further, the Officer, accompanied by Defendant, went to the door
of the individual who made the 911 call. The Officer spoke with the woman who
answered the door, who he testified he believed to be the caller. The Officer
explained, to her and to Defendant, that Defendant was trespassing on the property.
Defendant “appeared to understand that he was going to be trespassing [sic] the
property.” “Based on the totality of the circumstances and his impairment” the
Officer then asked Defendant how he was going to get home. Defendant had no clear
answer, and “[h]is story constantly changed.” The Officer decided to “detox”1
Defendant. He informed Defendant that Defendant was being “trespassed[,]” and,
although not under arrest, he was going to be taken for a detox.
Preparing for transport, the Officer attempted to handcuff Defendant, in
accordance with his department’s policy to handcuff individuals transported by police
1The Officer defined “detoxing” as taking an intoxicated person who has not committed a crime
into custody to be held until he regains sobriety. The Officer testified that once an officer decides to
detox someone, handcuffs are placed on the individual, in accordance with department policy, to
further officer safety, and the individual is then transported to jail.
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vehicles. Due to Defendant’s large frame, Defendant could not put his hands together
behind his back. The Officer reached for his handcuff pouch, and when the “snap of
the handcuff pouch happened,” Defendant became aggressive, used “foul language[,]”
tensed up, and tried to pull away from the Officer. The Officer testified that, in
response, he tried to get control of Defendant. The Officer pushed Defendant into the
side of his police vehicle. The Officer testified that once Defendant resisted, he was
under arrest for “resist, delay and obstruct[,]” and he told Defendant he was under
arrest.
Defendant tried to turn around and “raised his fist as if to throw a punch[,]”
causing the Officer to disengage and stand back. The Officer pointed his Taser at
Defendant, giving commands and advising him he was under arrest. Defendant took
flight, and the Officer gave chase, Taser in hand. Defendant fell to the ground, lying
on his back. The Officer commanded Defendant to roll over and place his hands
behind his back. Defendant refused to comply, and raised his feet and hands towards
the Officer, “taking a combat stance.” The Officer fired his Taser, incapacitating
Defendant for five seconds. The Officer testified that the “whole time [he] had been
on the radio advising [he] was in a chase” and Defendant had been Tased. When
Defendant began removing the Taser’s probes, the Officer attempted to tase him
again, but it was ineffective, as Defendant had removed one of the leads.
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Defendant took flight a second time, and the Officer chased him. The Officer
tackled Defendant. The Officer testified: “It’s at this time that the fight was on.”
Defendant began striking the Officer, and the Officer responded, striking Defendant.
The Officer testified that “the whole time [he was] giving verbal, clear commands,
[and] also trying to talk on [his] radio.”
The Officer’s radio was positioned on his shirt, at the center of his chest. At
one point, Defendant grabbed the radio and “slung it off to the side” so that the Officer
could no longer use it. The blows continued. Defendant reached down and grabbed
the Officer’s pistol. The two struggled, and the Officer eventually regained control
of the pistol. The Officer struck Defendant’s thigh with his Asp Baton, but then threw
it away because it was ineffective to restrain Defendant.
The Officer, still on top of Defendant, “took a rear mount” and placed his left
forearm in front of Defendant’s face to try to hold him down. Defendant continued to
fight, and bit the Officer’s left forearm, causing the Officer to reposition. Defendant
bit him a second time, causing the Officer to release Defendant. Defendant tried to
turn around, so the Officer again repositioned. Defendant bit him a third time, on
the Officer’s right bicep. Defendant was then able to get “a front mount” on top of the
Officer. When the Officer’s backup arrived, the Officer was lying on his back,
attempting to defend himself. The Officer and Defendant continued to struggle as
backup assisted in securing Defendant.
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The Officer’s injuries included: sustained puncture wounds on his left forearm
and right bicep, severe bruising and depressions, permanent scarring, and scabbing.
The scarring includes a large circle on his right bicep, “just over a half an inch to an
inch in a circle” with a “large depression[,]” and “a deep ridge” on his left arm. The
Officer experienced loss of sleep and extreme stress. He also had to be tested multiple
times for communicable diseases, which he described as “extremely nerve-racking[.]”
Defendant was indicted for: (1) assault on a law enforcement officer inflicting
serious bodily injury by “biting [the Officer]” and “hitting him about his face with
closed fists[;]” (2) assault with a deadly weapon inflicting serious bodily injury, the
deadly weapon being Defendant’s teeth; and (3) attaining habitual felon status.
Defendant filed a pretrial Motion to Suppress, arguing the arrest was unlawful, and,
thus, any acts after the arrest should be suppressed as fruits of the poisonous tree.
The trial court denied this motion. At the end of the State’s evidence, Defendant
again argued the arrest was unlawful, moving to dismiss the charges. His motion
was denied. Defendant did not present any evidence, and renewed his Motion to
Dismiss. The trial court again denied the motion.
The jury returned verdicts of guilty for assault on an officer inflicting serious
bodily injury, assault inflicting serious injury, and attaining habitual felon status.
The trial court arrested judgment on the assault inflicting serious injury offense, and
entered judgment on the offense of assault on a law enforcement officer inflicting
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serious bodily injury with the habitual felon enhancement. Defendant was sentenced
to an active term of 146 to 188 months. Defendant gave oral notice of appeal.
Analysis
On appeal, Defendant presents four arguments: (1) the trial court erred by
denying his Motion to Dismiss; (2) the trial court erred or plainly erred by denying
his Motion to Suppress and admitting evidence obtained as a result of an unlawful
arrest; (3) the trial court erred or plainly erred by failing to instruct the jury on the
right to resist an unlawful arrest; and (4) the trial court erred or plainly erred by
failing to instruct the jury on the right to defend oneself from excessive force by a law
enforcement officer. We disagree and address the arguments in turn.
I. Motion to Dismiss
Defendant argues the trial court erred by denying his Motion to Dismiss
because he only used the amount of force reasonably necessary to resist an unlawful
arrest when he fought the Officer. We disagree.
We review the denial of a motion to dismiss de novo. State v. Smith, 186 N.C.
App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). A trial court properly denies
a motion to dismiss if “there is substantial evidence (1) of each essential element of
the offense charged, and (2) that defendant is the perpetrator of the offense.” Id. at
62, 650 S.E.2d at 33 (citations omitted). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
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at 62, 650 S.E.2d at 33 (quotation omitted). In making this determination, the trial
court considers the evidence in the light most favorable to the State. State v. Rose,
339 N.C. 172, 192-93, 451 S.E.2d 211, 223 (1994) (citation omitted).
To prove assault on a law enforcement officer inflicting serious bodily injury,
the State must show: (1) the defendant assaulted the victim; (2) serious bodily injury
occurred; (3) the victim was a law enforcement officer performing his official duties
at the time of the assault; and (4) the defendant knew or had reasonable grounds to
know that the alleged victim was a law enforcement officer. N.C.G.S. § 14-34.7(a)
(2015); see also N.C.P.I.—Crim. 208.94 (2015).
The State provided substantial evidence of each essential element of assault
on a law enforcement inflicting serious bodily injury; therefore, it was proper for the
trial court to deny Defendant’s Motion to Dismiss. Element (1) requires the State
provide substantial evidence of:
an overt act or an attempt, or the unequivocal appearance
of an attempt, with force and violence, to do some
immediate physical injury to the person of another, which
show of force or menace of violence must be sufficient to put
a person of reasonable firmness in fear of immediate bodily
harm.
State v. Mitchell, 358 N.C. 63, 69-70, 592 S.E.2d 543, 547 (2004) (quotation omitted).
The State provided such relevant evidence when the Officer testified that Defendant
hit and bit him multiple times, wounding him.
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Section 14-32.4(a) (2015) of the North Carolina General Statutes defines
Element (2) as an injury “that creates a substantial risk of death, or that causes
serious permanent disfigurement, coma, a permanent or protracted condition that
causes extreme pain, or permanent or protracted loss or impairment of the function
of any bodily member or organ, or that results in prolonged hospitalization.” State v.
Williams, ___ N.C. App. ___, ___, 804 S.E.2d 570, 577 (2017) (quoting N.C.G.S. § 14-
34.7(a)); see also N.C.P.I.—Crim. 208.94. Here, the Officer testified that Defendant’s
bites caused extreme pain, skin removal, permanent scarring, and hospitalization.
Photographs of the injuries were shown to the jury. Further, the trial court permitted
the Officer to show his scarring to the jury, which included a depressed circle on his
right bicep that is “just over half an inch to an inch in a circle” and scarring on his
left arm that the Officer described as “a deep ridge[.]” A reasonable juror could find
this evidence sufficient to conclude the Officer’s injuries caused serious permanent
disfigurement, or a permanent or protracted condition that caused extreme pain, or
injury that resulted in prolonged hospitalization. Thus, viewing the evidence in the
light most favorable to the State, there is substantial evidence that the Officer
suffered a serious bodily injury.
With regard to Element (3), the Officer was a law enforcement officer at the
time of the incident. In the light most favorable to the State, the evidence shows that,
when the assault occurred, the Officer was attempting to discharge his official duties
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as a routine patrol officer by responding to a report about a trespasser, conducting
investigative work, and acting on the results of his investigation. Whether an officer
is engaged in the performance of his official duties includes both the hot pursuit of a
suspect, and also “such duties as investigative work . . . and routine patrol by
automobile.” State v. Gaines, 332 N.C. 461, 471, 421 S.E.2d 569, 574 (1992).
Moreover, “criminal liability for the offense of assaulting an officer is not limited to
situations where an officer is engaging in lawful conduct in the performance or
attempted performance of his or her official duties.” State v. Friend, 237 N.C. App.
490, 495, 768 S.E.2d 146, 149 (2014). There is substantial evidence the Officer was a
law enforcement officer performing his official duties at the time of the assault.
Finally, the State put forth substantial evidence of Element (4). Defendant
knew or had reasonable grounds to know the alleged victim was a law enforcement
officer, as the Officer arrived in a marked patrol vehicle, was uniformed, and told
Defendant he was a law enforcement officer. Thus, the State provided such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion as
to each element of assault on a law enforcement officer inflicting serious bodily injury.
The trial court did not err in denying Defendant’s Motion to Dismiss.
II. Motion to Suppress
Defendant argues the trial court erred or plainly erred by denying his Motion
to Suppress and admitting evidence obtained as a result of an unlawful arrest. We
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disagree. Even if a police officer’s conduct violates a defendant’s Fourth Amendment
rights, evidence of an attack on an officer is not fruit of a poisonous tree subject to
suppression. Friend, 237 N.C. App. at 495-96, 768 S.E.2d at 150 (citation omitted).
As a preliminary matter, Defendant did not adequately preserve appellate
review of the denial of his Motion to Suppress because he failed to object to the
evidence at the time it was offered at trial. See State v. Golphin, 352 N.C. 364, 449,
533 S.E.2d 168, 224 (2000) (explaining a pretrial motion to suppress is a type of
motion in limine and that such a “motion . . . is not sufficient to preserve for appeal
the question of admissibility of evidence if the defendant does not object to that
evidence at the time it is offered at trial”) (citation omitted); see also State v. Waring,
364 N.C. 443, 468, 701 S.E.2d 615, 631-32 (2010). Thus, Defendant waived any
objection to the denial of his Motion to Suppress.
However, on appeal, Defendant specifically and distinctly requests we review
the denial of the Motion to Suppress for plain error.
In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved
by rule or law without any such action nevertheless may be
made the basis of an issue presented on appeal when the
judicial action questioned is specifically and distinctly
contended to amount to plain error.
N.C.R. App. P. 10(a)(4) (2016). “[T]he plain error standard of review applies on appeal
to unpreserved instructional or evidentiary error[,]” State v. Lawrence, 365 N.C. 506,
518, 723 S.E.2d 326, 334 (2012), which includes the denial of a pre-trial motion to
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suppress when a defendant fails to object to the admission of evidence that was the
subject of his pre-trial motion to suppress. State v. Williams, ___ N.C. App. ___, ___,
786 S.E.2d 419, 424-25 (2016). Plain error exists when “a fundamental error occurred
at trial[,]” and, absent the error, it is probable the jury would have returned a
different result. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.
“The doctrine of the fruit of the poisonous tree is a specific application of the
exclusionary rule[,]” providing for the suppression of “all evidence obtained as a result
of illegal police conduct.” Friend, 237 N.C. App. at 495, 768 S.E.2d at 150 (citing State
v. McKinney, 361 N.C. 53, 58, 637 S.E.2d 868, 872 (2006)). However, this doctrine
does not permit evidence of attacks on police officers to be excluded, even “where those
attacks occur while the officers are engaging in conduct that violates a defendant’s
Fourth Amendment rights.” Friend, 237 N.C. App. at 495-96, 768 S.E.2d at 150
(citation omitted). Thus, where a defendant argues an initial stop or subsequent
arrest violated “his Fourth Amendment rights, the evidence of his crimes against the
officers would not be considered excludable ‘fruits’ pursuant to the doctrine.” Id. at
496, 768 S.E.2d at 150 (citation omitted).
Here, Defendant seeks the suppression of evidence of an attack on a police
officer. Since evidence of an attack on a police officer cannot be suppressed as a fruit
of the poisonous tree, id. at 495-96, 768 S.E.2d at 150, the evidence Defendant sought
to suppress cannot be suppressed as a matter of law. Thus, although the trial court
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denied the Motion to Suppress on other grounds,2 Defendant cannot establish
prejudicial error, much less plain error.
III. Resisting an Unlawful Arrest Instruction
Defendant argues the trial court erred or plainly erred by failing to instruct
the jury on the right to resist an unlawful arrest. We disagree.
At trial, Defendant neither requested, nor objected to the omission of, a jury
instruction on the defense of the right to resist an unlawful arrest. Thus, we review
for plain error.
“When [a] defendant fail[s] to object to the instructions at trial but claims on
appeal of improper jury instructions, the instructions are reviewed for plain error.”
State v. Garris, 191 N.C. App. 276, 287, 663 S.E.2d 340, 349 (2008) (citation omitted).
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.
2 The order denying Defendant’s Motion to Suppress determined that Defendant’s Fourth
Amendment rights were not violated, by concluding “the [O]fficer had reasonable suspicion to do an
investigative detention based on the call from dispatch and all the observations that he had made at
the scene and based on conversation with the lady that made the 911 call[;]” and “an arrest was not
made until . . . there was a breach of the peace, at which time [Defendant] was arrested for pulling
away and being disruptive with the [O]fficer in his request for his instruction which gave rise to
probable cause for the arrest of resisting and delaying by pulling away and refusing to be handcuffed.”
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Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (alteration in original) (citations,
quotations, and internal quotation marks omitted). “Under the plain error rule,
defendant must convince this Court not only that there was error, but that absent
the error, the jury probably would have reached a different result.” State v. Jordan,
333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted). “However, before
engaging in plain error analysis it is necessary to determine whether the instruction
complained of constitutes error.” State v. Cummings, 361 N.C. 438, 470, 648 S.E.2d
788, 807 (2007) (citation omitted).
“A person . . . has the right to resist an unlawful arrest by the use of force, as
in self-defense, to the extent that it reasonably appears necessary to prevent unlawful
restraint of his liberty . . . .” State v. Sanders, 303 N.C. 608, 622, 281 S.E.2d 7, 15
(1981) (emphasis added and omitted) (quotation omitted). However, this “right is
limited to the use of such force as reasonably appears to be necessary to prevent the
unlawful restraint of his liberty.” State v. Branch, 194 N.C. App. 173, 174, 669 S.E.2d
18, 19 (2008) (internal quotation marks omitted). If the evidence tends to show an
unlawful arrest occurred, it is error for the trial court to fail to instruct the jury on
the right to resist an unlawful arrest. See State v. Sparrow, 276 N.C. 499, 513, 173
S.E.2d 897, 906 (1970) (holding a trial court was in error when its instructions ignored
whether the officers’ actions were lawful when the evidence for the defendants tended
to show the officers’ actions were unlawful).
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For a warrantless arrest to be lawful, it “must be supported by probable cause.”
State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) (citations omitted).
Probable cause to arrest exists:
when there is ‘a reasonable ground of suspicion, supported
by circumstances sufficiently strong in themselves to
warrant a cautious man in believing the accused to be
guilty.’ (Citations omitted.) The existence of probable
cause depends upon ‘whether at that moment the facts and
circumstances within [the officer’s] knowledge and of which
[he] had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the
[suspect] had committed or was committing an offense.’
(Citation omitted.)
State v. Wrenn, 316 N.C. 141, 147, 340 S.E.2d 443, 447 (1986) (alterations in original)
(quotation omitted).
Here, Defendant alleges the Officer’s warrantless arrest was unsupported by
probable cause, and, thus, was unlawful. Defendant presented no evidence at trial,
and the State’s evidence did not conflict with itself.
The Officer maintains he had not arrested Defendant when he attempted to
secure Defendant’s hands in handcuffs. Instead, he claims he acted pursuant to the
authority in N.C.G.S. § 122C-303 (2015), and only arrested Defendant once
Defendant resisted the Officer’s attempts to control Defendant’s aggression.
However, we are not bound by the Officer’s articulation of when the arrest occurred.
See Zuniga, 312 N.C. at 259, 322 S.E.2d at 145 (“An officer’s testimony that the
defendant was or was not under arrest is not conclusive.”) (citations omitted).
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When an “officer, by words or actions, indicates that an individual must remain
in the officer’s presence or come to the police station against his will, the person is for
all practical purposes under arrest if there is a substantial imposition of the officer’s
will over the person’s liberty.” State v. Sanders, 295 N.C. 361, 376, 245 S.E.2d 674,
684 (1978) (citation omitted). Section 15A-401(b)(1) (2015) of the North Carolina
General Statutes permits an officer to “arrest without a warrant any person who the
officer has probable cause to believe has committed a criminal offense . . . in the
officer’s presence.” Similarly, in Devenpeck v. Alford, 543 U.S. 146, 160 L. E. 2d 537
(2004), the Supreme Court of the United States held a warrantless arrest by an officer
is reasonable under the Fourth Amendment if, given the objective facts available to
the officer at the time of arrest, there is probable cause that a crime has been or is
being committed. Id. at 152-53, 160 L. E. 2d at 544.
A. N.C.G.S. § 122C-303
The Officer testified that he acted pursuant to N.C.G.S. § 122C-303 when he
attempted to detox Defendant, and that doing so did not constitute an arrest. We
disagree. Although “[n]o person may be prosecuted solely for being intoxicated in a
public place[,]” N.C.G.S. § 14-447(a) (2015), N.C.G.S. § 122C-303 permits an officer to
take publicly intoxicated persons to jail, without arresting them, to assist such
individuals. Davis v. Town of S. Pines, 116 N.C. App. 663, 671, 449 S.E.2d 240, 245
(1994). An officer may only so assist if an “intoxicated individual is apparently in
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need of and apparently unable to provide for himself food, clothing, or shelter but is
not apparently in need of immediate medical care and if no other facility is readily
available to receive him.” N.C.G.S. § 122C-303; see also Davis, 116 N.C. App. at 671,
449 S.E.2d at 245 (applying N.C.G.S. § 122C-303). Taking an individual to jail under
N.C.G.S. § 122C-303 against his will constitutes an arrest. Davis, 116 N.C. App. at
671, 449 S.E.2d at 245.
Therefore, as it is apparent that Defendant did not consent to the Officer
taking him to jail pursuant to N.C.G.S. § 122C-303, the Officer did not have the
authority to take Defendant to jail under § 122C-303 without it constituting an
arrest. See id. at 671, 449 S.E.2d at 245. However, the Officer’s failure to recognize
this point of law does not make Defendant’s arrest a per se violation of the Fourth
Amendment because objective probable cause to arrest Defendant existed prior to the
Officer imposing his will over Defendant’s liberty.
Indeed, the Officer himself testified: “I was just trying to simply do my job,
trying to get this guy in detox. I decided not to charge him with anything even though
I had several charges on him.” (Emphasis added).
B. Objective Probable Cause to Arrest
The Officer had objective probable cause to arrest Defendant. In Devenpeck,
the Supreme Court of the United States held warrantless arrests are reasonable
under the Fourth Amendment if there is objective probable cause to arrest for the
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violation of an offense. Devenpeck, 543 U.S. at 152-53, 160 L. Ed. 2d at 544. Thus, it
is not necessary that Defendant was arrested for the commission of the offense for
which probable cause exists, so long as the facts known to the Officer objectively
provided probable cause to arrest him. See id. at 153, 160 L. Ed. 2d at 544; see also
Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 98 (1996) (“[T]he fact
that the officer does not have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer’s action does not invalidate the
action taken as long as the circumstances, viewed objectively, justify that action.”)
(quotation omitted).
Here, the objective facts known to the Officer provided him with sufficient
probable cause to arrest Defendant for second-degree trespass. See N.C.G.S.
§ 14-159.13 (2015) (“second-degree trespass”). Under Devenpeck, it does not matter
that the Officer did not arrest Defendant for second-degree trespass. The arrest was
lawful because there was objective probable cause that Defendant committed
second-degree trespass in his presence. See Devenpeck, 543 U.S. at 152-53, 160 L. E.
2d at 544.
Second-degree trespass occurs when a person “enters or remains on premises
of another” without authorization:
(1) After he has been notified not to enter or remain there
by the owner, by a person in charge of the premises, by a
lawful occupant, or by another authorized person; or
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(2) That are posted, in a manner reasonably likely to come
to the attention of intruders, with notice not to enter the
premises.
N.C.G.S. § 14-159.13. Second-degree trespass is a Class 3 misdemeanor. Id.
Here, throughout the Officer’s investigation, Defendant remained at the
apartment complex without authorization, even after he had been notified not to
enter or remain there by a person authorized to so notify him: the Officer. The trial
court found the Officer had such authority, as the Smithfield police have authority to
remove certain persons from Kay Drive. The Smithfield police officers have an agency
agreement enforcing this authority.3
The Officer testified Defendant understood that he was trespassing, and it was
only after the Officer notified Defendant that he was trespassing that the Officer
advised Defendant he was going to be transported for a detox. Thus, even though the
Officer did not arrest Defendant with second-degree trespass, there was objective
probable cause to do so at the time of Defendant’s arrest.
Defendant argues probable cause to arrest for second-degree trespass does not
create objective probable cause to make Defendant’s arrest lawful under Devenpeck
because second-degree trespass is a misdemeanor, not a felony. However, neither
3 The Officer testified the police have authority to remove persons from Kay Drive, as that
section and the apartments therein are subject to Section 8 housing and there is an agency agreement
giving the officers this authority.
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N.C.G.S. § 15A-401(b) nor Devenpeck limit themselves in this way.4 Since there was
objective probable cause to arrest Defendant for second-degree trespass, the Officer
lawfully arrested Defendant. Therefore, the trial court did not err when it did not
include the right to resist an unlawful arrest in its jury instructions because the
evidence demonstrated that an objectively lawful and constitutional arrest occurred.
As there was no error, there was no plain error. See Cummings, 361 N.C. at 470, 648
S.E.2d at 807.
IV. Right to Defend Oneself From Excessive Use of Force by a Law
Enforcement Officer Instruction
Defendant argues the trial court erred or plainly erred by failing to instruct
the jury on the right to defend oneself from excessive force by a law enforcement
officer. Based on the evidence presented at trial, this argument lacks merit.
At trial, Defendant neither requested, nor objected to the omission of, a jury
instruction on the right to defend oneself from the excessive use of force by a law
enforcement officer. Therefore, this issue is not properly preserved for our review on
appeal. At Defendant’s request, we review for plain error whether the trial court
erred by not instructing the jury on the right to defend oneself from excessive use of
force by a law enforcement officer.
4Moreover, while not binding on our Court, we have previously applied Devenpeck in an
unpublished case to a scenario where the objective probable cause to arrest a defendant was based on
a misdemeanor crime. See State v. Stephens, No. COA05-1218, 178 N.C. App. 393, 631 S.E.2d 235
(N.C. Ct. App. July 5, 2006) (unpublished).
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STATE V. BURWELL
Opinion of the Court
We review Defendant’s appeal of improper jury instructions for plain error.
See Garris, 191 N.C. App. at 287, 663 S.E.2d at 349 (citation omitted); see also
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citations omitted). However, we first
determine “whether the instruction complained of constitutes error.” Cummings, 361
N.C. at 470, 648 S.E.2d at 807.
“If attempting a lawful arrest, an officer has the right to use reasonable force
to subdue the arrestee and the arrestee has no right to resist.” State v. Burton, 108
N.C. App. 219, 226, 423 S.E.2d 484, 488 (1992) (citation omitted). However, if “an
officer uses excessive force to execute a lawful arrest, the arrestee may defend against
the excessive force.” Id. at 226, 423 S.E.2d at 488; see State v. Mensch, 34 N.C. App.
572, 575, 239 S.E.2d 297, 299 (1977).
[W]here there is evidence tending to show the use of such
excessive force by the law officer, the trial court should
instruct the jury that the assault by the defendant upon
the law officer was justified or excused if the assault was
limited to the use of reasonable force by the defendant in
defending himself from that excessive force.
Mensch, 34 N.C. App. at 575, 239 S.E.2d at 299.
In the case before us, Defendant did not testify that his actions were an
attempt to protect himself from excessive force, and the trial court did not instruct
the jury about the right to defend oneself against the use of excessive force during an
arrest. Only if the evidence tended to show that the use of force by the Officer was
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STATE V. BURWELL
Opinion of the Court
excessive did the trial court err by not instructing on this right. See Mensch, 34 N.C.
App. at 575, 239 S.E.2d at 299.
The evidence did not tend to show the use of force by the Officer was excessive.
As discussed supra, the Officer lawfully arrested Defendant. Defendant provoked the
Officer’s use of force when he became aggressive as the Officer reached for his
handcuff pouch. Defendant tensed, pulled away from the Officer, and tried to turn
around. The Officer responded by pushing Defendant into the vehicle to prevent
Defendant from escaping. Defendant then attempted to punch the Officer. The
Officer stepped away, removed his Taser, pointed the Taser at Defendant, and told
Defendant he was under arrest. Defendant fled, and then fell down. The Officer
again pointed his Taser at Defendant, commanding Defendant to roll over and put
his hands behind his back. Defendant did not comply; instead, he took “a combat
stance[.]” Due to Defendant’s noncompliance and aggressive stance, Defendant fired
the Taser, momentarily incapacitating Defendant. Defendant then fled again. This
time, the Officer gave chase, commanding Defendant to stop, and eventually tackling
Defendant to the ground.
Defendant proceeded to hit the Officer, remove the Officer’s radio, and grab the
Officer’s pistol. The Officer tried to get control of Defendant by striking him with his
baton and his hands, attempting to protect himself, to effectuate the arrest, and to
prevent Defendant’s escape. The Officer could not gain control; Defendant continued
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STATE V. BURWELL
Opinion of the Court
to hit him. Defendant then bit the Officer multiple times. All the Officer “could do
was just hold” on until backup arrived. Before backup arrived, Defendant was able
to sit on top of the Officer, straddling him, delivering blows to the Officer’s face, body,
and head. Backup officers arrived, securing Defendant. This incident lasted
approximately two and a half minutes.
This course of events, which Defendant did not present evidence to contradict,
does not tend to show the Officer used excessive force. The Officer used the amount
of force necessary to bring the situation under control. Therefore, since the trial court
is only required to instruct the jury based on the evidence presented at trial, see State
v. Anderson, 40 N.C. App. 318, 321, 253 S.E.2d 48, 50 (1979), the trial court did not
err when it did not instruct on the right to defend oneself against the use of excessive
force during an arrest. There cannot be plain error, as there was no error. See
Cummings, 361 N.C. at 470, 648 S.E.2d at 807.
Conclusion
For the reasons stated above, the trial court did not err. The trial court
properly denied Defendant’s Motion to Dismiss and his Motion to Suppress.
Furthermore, the trial court did not err when it did not sua sponte instruct the jury
on the right to resist an unlawful arrest and the right to defend oneself against
excessive force by a law enforcement officer. Defendant received a fair trial, free from
error.
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STATE V. BURWELL
Opinion of the Court
NO ERROR.
Judges HUNTER, JR. and DAVIS concur.
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