No. COA 06 – 1527 DISTRICT TWENTY-TWO

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Davidson County) 04 CRS 54825

TARINA MARIE SPARKS )

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DEFENDANT-APPELLEE’S SUBSTITUTE BRIEF

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INDEX

TABLE OF AUTHORITIES...........................................II

QUESTIONS PRESENTED.............................................1

STATEMENT OF THE CASE...........................................1

STATEMENT OF THE FACTS..........................................3

ARGUMENT........................................................6

CONCLUSION.....................................................24

CERTIFICATE OF FILING AND SERVICE..............................26

TABLE OF AUTHORITIES

CASES

State v. Bromfield, 332 N.C. 24, 36, 418 S.E.2d 491, 497 (1992)...............................................23

State v. Brooks, 337 N.C. 132, 446 S.E.2d 579 (1994)..........12

State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)....................................................8

State v. Fisher, 141 N.C. App. 448, 539 S.E.2d 677 (2000), appeal dismissed and disc. rev. denied383 N.C. 387, 547 S.E.2d 420 (2001). . .6, 12, 13, 20, 22, 23

State v. Logner, 148 N.C. App. 135, 557 S.E.2d 191 (2001)...............................................10, 21

State v. Smith, 278 N.C. 36, 41, 178 S.E. 2d 597, 601, cert. denied, 403 U.S. 934, 91 S. Ct. 2266, 29 L. Ed. 2d 715 (1971)........................................10

STATUTES

N.C. Gen. Stat. § 20-7(a)......................................1

N.C. Gen. Stat. § 20-150.......................................1

N.C.R. App. P. 10(c)(1)........................................7

OTHER AUTHORITI ES

Wikipedia, an internet encyclopedia, (definition of Petard): http://en.wikipedia.org/wiki/Petard.............19

CONSTITUTIONAL PROVISIONS

Const. of N.C., Art. I, §§. 19, 20, & 23......................24

U.S. Const. Amend. IV.........................................23

ii

No. COA 06 – 1527 DISTRICT TWENTY-TWO

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Davidson County) 04 CRS 54825

TARINA MARIE SPARKS )

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DEFENDANT-APPELLEE’S SUBSTITUTE BRIEF

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QUESTIONS PRESENTED A. THE TRIAL COURT DID NOT ERR IN MAKING CERTAIN

FINDINGS OF FACT.

B. THE TRIAL COURT DID NOT ERR IN MAKING CERTAIN CONCLUSIONS OF LAW.

C. THE TRIAL COURT DID NOT ERR IN ORDERING SUPPRESSION OF THE EVIDENCE SEIZED FROM DEFENDANT’S VEHICLE AND OF HER STATEMENT TO THE POLICE.

STATEMENT OF THE CASE

On May 10, 2004, Tarina Marie Sparks was charged in a felony

warrant with Possession With Intent to Sell or Deliver of a Class

Schedule II controlled substance, methamphetamine. In the same

warrant, she was also charged with Possession of a Class IV

controlled substance, “Collapen.” [sic] Ms. Sparks was also cited

on a North Carolina Uniform Citation form for driving “without

being licensed as a driver by the Division of Motor Vehicles of

North Carolina” in violation of G.S. 20-7(a).” Finally, she was

also cited on the same uniform citation form for “failing to stop

at a duly erected stop sign. GS 20-150.”

The Grand Jury of Davidson County indicted Ms. Sparks in 04

CRS 54825 on June 21, 2004 for the crime of Possession With Intent

to Sell or Deliver of a Class Schedule II controlled substance,

methamphetamine. The date of the alleged offense was May 10,

2004.1 A copy of the indictment in 04 CRS 54825 is attached

hereto, and is available for review in the Appendix to this brief.

The defendant, through counsel, then filed a series of

Motions to Suppress in 04 CRS 54825 where she sought suppression

of physical evidence found and statements made during the incident

described in the indictment issued by the Davidson County Grand

Jury. The motions were filed on September 27, 2004 and November

10, 2005. These motions were heard in Davidson County Superior

Court on May 29, 2006 before the Hon. Christopher M. Collier.

On June 8, 2005,2 Judge Collier issued a formal Order,

finding facts and making conclusions of law, which allowed

defendant’s Motions to Suppress. A copy of Judge Collier’s June 8,

2006 Order is found in the appendix to this brief. The State gave

1 A check of the Davidson County Clerk of Court’s records shows that count two of the original felony arrest warrant “Possession of the Class IV, Controlled Substance, “Collapen,” [sic] was voluntarily dismissed on June 10, 2004. The charges of driving without a license and stop sign violation were dismissed voluntarily on November 4, 2004. the reason given for the dismissals in each case was “INDICTED ON RELATED CHARGES.” Copies of printouts from the Davidson County Clerk of Court’s records are available for review in the Appendix to this brief.

2 The record shows that Judge Collier entered an oral order suppressing the complained of evidence in open court on June 5, 2006. He followed that oral order with a written order signed on June 8, 2006. (R. p. 28)

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written notice of appeal.3 On June 30, 2006, Superior Court Judge

W. Erwin Spainhour made the appellate entries.

The printed record was filed on November 16, 2006, it was

docketed on December 4, 2006, and mailed to the parties on

December 12, 2006. The State’s brief was filed on February 9,

2007. By order of this Court dated February 23, 2007, the

defendant was allowed until April 11, 2007 to file her brief.

Defendant-Appellee’s brief was mailed to this Court and the

Attorney General on April 11, 2007.

STATEMENT OF THE FACTS

On May 10, 2004, at about midnight, Officer James McClanathan

of the Thomasville Police Department was on patrol when he noticed

a gold Honda Accord run a stop sign. The officer turned around

and followed the vehicle. When the Honda came to a stop, he

recognized the driver as Tarina Sparks, a person with whom he had

prior dealings. (T.pp. 9 - 10, 41)

While following the Honda, Officer McClanathan had called for

back-up. Upon approaching the vehicle he asked the driver, Ms.

Sparks, for license and registration. Although she was

emotionally upset, Ms. Sparks was able to produce a driver’s

license. The officer took Ms. Sparks’ license and “ran it through

communications.” It came back suspended. The officer then moved

3 This document was undated and was not “clocked in” with the Davidson County Clerk of Superior Court. (R.p. 31)

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Ms. Sparks from one side of his car to the other. (T.pp. 11 – 12,

17 - 18)

As a second officer, Teresa Hicks, drove up, Officer

McClanathan placed Ms. Sparks in handcuffs.4 Officer Hicks

conducted a search of Ms. Sparks’ person. She discovered a

plastic baggie containing a white substance. In Officer

McClanathan’s opinion, the white substance contained in the

plastic baggie was methamphetamine (T.pp. 17 – 20, 43, 68 -69)

At that point, Officer McClanathan placed Ms. Sparks in the

back passenger’s seat of his patrol car, and began a search of the

Honda driven by Ms. Sparks. He located three small packages in

Ms. Spark’s purse, which he had found in the console of the Honda

automobile. In the officer’s opinion, two of the packages

contained methamphetamine, while the third package contained some

sort of “unknown” pills. No weapons were found during the search

of the Honda automobile. During the search, the female officer

stood between Officer McClanathan’s patrol vehicle and Ms. Sparks’

Honda. (T.pp. 23 – 24, 49 - 50)

After completing his search of the Honda vehicle driven by

Ms. Sparks, a rotation wrecker was called. Officer McClanathan

then Mirandized Ms. Sparks. After the wrecker came for the Honda,

Ms. Sparks was transported to the Thomasville Police Department.

(T.pp. 25 – 26)

4 Who handcuffed Ms. Sparks, and when it occurred was just the beginning of the confusion of facts surrounding this matter. Contrary, to what Officer McClanathan testified to, the female officer, Teresa Hicks, testified that she, “Took her to the back of Officer McClanathan’s vehicle and placed the cuffs on her.” (R.P. 69. l. 22 – 25)

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Once at the Thomasville Police Department, Officer

McClanathan cited Ms. Sparks for “driving while license suspended

on a uniform citation.”5 This citation was written by McClanathan

at 4:14 a.m., more than four hours after his initial encounter

with Ms. Sparks. (T.p. 41)

McClanathan also stated that he took an inculpatory, written

statement from Ms. Sparks at the Police Department in Thomasville.

McClanathan’s later testimony, including the statement itself,

indicated that it was not taken in Thomasville, as he earlier

recollected, but instead, was taken in Lexington at the County

Jail at about 5:50 a.m. on May 10th.6 (T.p. 32, 34, 54 – 55, 60)

At some point in time, certainly no sooner than 5:50 a.m.,

when he concluded taking his written statement from Ms. Sparks,

Officer McClanathan took Ms. Sparks before a magistrate in

Lexington on a charge of possession with intent to sell or deliver

a Schedule Two controlled substance (methamphetamine) and

Possession of the “Collapens” [sic} pills.

5 There was quite a bit of confusion in Officer McClanathan’s mind about what he actually cited Ms. Sparks for on the uniform citation. Even though the prosecutor thought that Officer McClanathan had cited Ms. Sparks for “driving without license,” McClanathan insisted he had cited her for “driving while license suspended.” (T.p. 26) McClanathan continued to insist this was true until defense counsel confronted him with a copy of the citation (showing McClanathan cited Ms. Sparks for driving without a license and a stop sign violation). (T.p.40 – 41) It is also interesting that Officer McClanathan made a written report to the Thomasville PD. In that report he stated that he initially stopped Ms. Sparks for “failing to stop at a stop sign” and then later he cited her for “driving without a license.” (T.pp. 43 – 44)

6 Ms. Sparks’ written statement, wherever it was taken at, was very short and reads as follows. “I understand and know what I am doing. The meth you found in my car I stole from my boyfriend. I stole it because I felt I was owed something instead of being left again. I do not sell, manufacture or deliver meth. Those Colladapins I have a prescription for. I have been planning to get help.” (T.pp. 30 – 31)

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The record discloses that the misdemeanor citation charging

Ms. Sparks with driving without a license and stop sign violation

was not provided to the magistrate considering her felony charges.

The magistrate issuing the felony charge never “signed off” on it

by finding there was or was not “probable cause” for her continued

detention in this matter. (T.pp. 57 – 58, R.p. 2)

Likewise, the misdemeanor charges were never added to Ms.

Sparks’ release order for the drug charges. (T.pp. 57 – 58, R.p.

2) Ms. Sparks was released from custody on a $1,000.00 unsecured

bond in 04 CR 054825 for the offenses of “PWIMSD SCH II CS: SIMPLE

POSSESSION SCH IV CS”. (R.p. 4) No bond was established in 04 CR

4955 (the uniform citation containing the traffic charges), since

it was never presented to a magistrate.

ARGUMENT

1. Standard of Review

In State v. Fisher, 141 N.C. App. 448, 539 S.E.2d 677 (2000)

appeal dismissed and disc. rev. denied, 383 N.C. 387, 547 S.E.2d

420 (2001), Judge Timmons-Goodson, now Justice Timmons-Goodson,

set forth the standard of review for this matter:

Our review of an order suppressing evidence is strictly limited. In evaluating such an order, this Court must determine whether competent evidence supports the trial court's findings of fact. Id. Findings of fact supported by competent evidence are binding on appeal. "Inconsistencies or conflicts in the testimony do not necessarily undermine the trial court's findings, since such contradictions in the evidence are for the finder of fact to resolve." "If there is a conflict between the State's evidence and defendant's evidence on material

6

facts, it is the duty of the trial court to resolve the conflict[,] and such resolution will not be disturbed on appeal." Although the trial court's findings of fact may be binding on appeal, we review its conclusions of law de novo. We must not disturb the court's conclusions if they are supported by the court's factual findings. Id., at 451 – 452, at 680. (internal citations omitted)

2. The State’s Assignments of Error7

The State’s assignments of error (R.pp. 34 - 37) taken as a

group, or individually, are in direct violation of N.C.R. App. P.

10(c)(1). Taken individually, each of the State’s Assignments of

Error is “not confined to a single issue of law” and do not “state

plainly, concisely and without argumentation the legal basis on

which error is assigned.” "Assignments of error… in support of

which no reason or argument is stated or authority cited, will be

taken as abandoned." N.C.R. App. P. 28(b)(6) The State’s

assignments of error are the subject of a separate motion to

dismiss by the defendant filed contemporaneously with this motion

based on N.C.R. App. P. 10(c)(1).

3. The Issues Presented by the State in its Brief

In its brief the State presented three “Questions” for this

Court’s resolution:

I. DID THE TRIAL COURT ERR IN MAKING CERTAIN FINDINGS OF FACT?

II. DID THE TRIAL COURT ERR IN MAKING CERTAIN CONCLUSIONS OF LAW?

7 A copy of the State’s Assignments of Error are attached and may be found in the Appendix to this brief.

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III. DID THE TRIAL COURT ERR IN ORDERING SUPPRESSION OF THE EVIDENCE SEIZED FROM DEFENDANT’S VEHICLE AND OF HER STATEMENT TO THE POLICE?

(State’s Brief, page 1)

A. THE TRIAL COURT DID NOT ERR IN MAKING CERTAIN FINDINGS OF FACT.

In this matter, the State assigned as error Judge Collier’s

findings of fact, numbers 12, 24, 28, 29, 30, 31, 32, 33, 34, 35,

36, 37, 38. “When reviewing a trial court’s order on a motion to

suppress, an appellate court is ‘strictly limited to determining

whether the trial judge's underlying findings of fact are

supported by competent evidence, in which event they are

conclusively binding on appeal, and whether those factual findings

in turn support the judge's ultimate conclusions of law.’” State

v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) Moreover,

an “appellate court accords great deference to the trial court in

this respect because it is entrusted with the duty to hear

testimony, weigh and resolve any conflicts in the evidence, find

the facts, and, then based upon those findings, render a legal

decision, in the first instance, as to whether or not a

constitutional violation of some kind has occurred. Id., at 134,

at 620.

Contrary to the State’s assertions, each of Judge Collier’s

findings of fact are fully supported by the evidence produced at

the suppression hearing in this matter. Assuming arguendo that

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there are some insignificant problems with Judge Collier’s

findings of fact,8 our appellate courts, nevertheless, “recognize

that contradictions and inconsistencies rarely render a court's

factual findings erroneous.” Fisher, at 454, at 682.

What really seems to be troubling the State with respect to

the complained of findings of fact is that Judge Collier refused

to take at “face value” the testimony of Officers McClanathan and

Hicks of the Thomasville Police Department. Instead Judge Collier

chose to follow the approach taken by this Court in State v.

Fisher, 141 N.C. App. 448, 539 S.E.2d 677 (2000), and “looked

behind the curtain” where it became evident to him that the

officers involved gave inconsistent testimony, which was “self-

contradicting” Id., at 454, at 682, and “replete with internal

contradictions concerning whether defendant was actually

arrested.” Id., at 452, at 681.

Simply because a witness testifies at a suppression hearing

to facts “x, y, and z,” does not necessarily mean that a trial

8 For instance, Judge Collier found that, “Officer J. McClanathan testified that he viewed through his rear-view mirror that a vehicle drove through a posted stop sign at the intersection of Lake Road and the Interstate 85 off-ramp. This occurred sometime around 12:30 a.m.” (R.p. 25)

Defendant concedes that there was no evidence presented at the suppression hearing in this matter that Officer McClanathan originally spotted the Honda vehicle driven by Ms. Sparks in “his rear-view mirror.” It appears that the officer first saw the Honda in question as he drove in its direction. (T.pp. 10, 36) Also, the evidence shows that the officer first spotted the Honda at midnight, not 12:30 a.m. (T.p. 41)

Nevertheless, these errors are very minor in variety, and unimportant in the greater scheme of things. Whether the officer first spotted the Honda in question in his “rear-view mirror” at “12:30 a.m.” or whether he saw the car in question “head-on” at “midnight” are completely inconsequential to the ultimate outcome of this matter. These minor mistakes do not in any way affect the validity of Judge Collier’s other findings of fact or conclusions of law.

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judge must ultimately find the facts to be “x, y, and z.”9 In the

context of a motions hearing, it is the sole responsibility of the

trial judge to determine who and what is believable, and to find

“facts” based on what seems credible to him or her. As stated by

our Supreme Court, a trial judge

sees the witnesses, observes their demeanor as they testify and by reason of his more favorable position, he is given the responsibility of discovering the truth. The appellate court is much less favored because it sees only a cold, written record. Hence the findings of the trial judge are, and properly should be, conclusive on appeal if they are supported by the evidence. State v. Smith , 278 N.C. 36, 41, 178 S.E. 2d 597, 601, cert. denied, 403 U.S. 934, 91 S. Ct. 2266, 29 L. Ed. 2d 715 (1971)

The transcript of this matter shows clearly that Judge

Collier listened carefully to the testimony of both witnesses,

asked questions when he was unsure what a witness’ answer meant,

and joined in a lively legal debate between the parties. He then

drafted a detailed order making findings of facts and conclusions

of law.

In its brief, the State seems to be arguing that because the

defendant offered no testimony to rebut that offered by the State,

that everything the State’s witnesses said is credible. The State

further seems to be suggesting where Judge Collier found facts

contrary to those “facts” offered by the State, Judge Collier was

in error. (See, State’s Brief pp. 14 – 17, 22 - 30)

9 For instance, simply because an officer testifies that he had the subjective intent to arrest, that testimony is not necessarily binding on the trial judge in finding whether a search incident to arrest actually took place. State v. Logner, 148 N.C. App. 135, 557 S.E.2d 191 (2001)

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When read individually and as a whole, the central theme of

State’s Assignments of Errors 1 – 6 is: “We presented what we

thought was believable evidence, but the judge found to the

contrary.” This was well within Judge Collier’s powers as the

finder of fact at this suppression hearing. Because Judge Collier

actually saw the witnesses and observed their demeanor, he was in

the best position to exercise his heavy “responsibility of

discovering the truth.” State v. Smith, supra, at 41, at 601.

Certainly, Judge Collier was in a better position to assess

the credibility of Officers McClanathan and Hicks than anyone

reading the transcript of the suppression hearing a year or more

after the hearing. Unless Judge Collier’s fact finding was

clearly erroneous, appellate courts must give “great deference to

the trial court” since “it is entrusted with the duty to hear

testimony, weigh and resolve any conflicts in the evidence…”

State v. Cooke, supra, at 134, at 620.

There is nothing in the record of this case to suggest that

Judge Collier did anything other than exercise the responsibility

granted him by Fisher, Smith and Cooke. His findings of fact

should be upheld.

B. THE TRIAL COURT DID NOT ERR IN MAKING CERTAIN CONCLUSIONS OF LAW.

At the outset, the defendant concedes that if what actually

happened in the instant case was a “search incident to arrest,”

contrary to Judge Collier’s findings, that Officer McClanathan

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would have been justified in searching both Ms. Sparks’ person and

the Honda vehicle she was driving. It is well established that

"if officers have probable cause to arrest the occupants [of a

vehicle], they may search--incident to that arrest--the entire

interior of the vehicle, including the glove compartment, the

console, or any other compartment, whether locked or unlocked, and

all containers found within the interior." State v. Fisher,

supra, at 455, at 682. See also, State v. Brooks, 337 N.C. 132,

446 S.E.2d 579 (1994)

Notwithstanding the holdings in Fisher and Brooks concerning

searches performed incident to arrest, Judge Collier found that:

“In the instant case, the evidence does not support a finding that

the defendant was ever arrested for the charge of Driving While

License Revoked or Driving Without an Operator’s License.” (R.p.

28, Conclusion of Law Number 11) In order to determine why Judge

Collier made this finding, it is useful to look at the facts of

Fisher in some detail. When one does, it becomes clear why Judge

Collier followed this Court’s lead in Fisher.10

As stated by the Fisher Court, the testimony of the officers

at the suppression hearing “was replete with internal

contradictions.” Id. at 452, at 681. Among the inconsistencies

and contradictions in the officers’ testimony in Fisher and found

by this Court were: (1) whether or not a magistrate did or did not

10 Apparently, the State also feels that the facts of Fisher are dispositive of how this case should be decided since it spends about 20% of its brief discussing those facts in detail.” (State’s Brief, 22 – 30)

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“sign off” on the citation written to the defendant for driving

with license revoked; (2) whether the search of the defendant’s

vehicle took place before or after the citation for driving for

license revoked in question was actually written; (3) the location

the citation was written at, to wit: the scene or the magistrate’s

office; and, (4) whether it was Officer Tripp or Detective Smith

who actually took the client into custody for driving while

license revoked. Id., at 452 – 454, at 681 – 682.

Finally, the State’s brief creates yet another inconsistency.

Contrary to assertions by the State in its brief (State’s Brief,

p. 25), that the defendant in Fisher was never formerly arrested

by either of the officers involved, Detective Smith testified in

Fisher, "We placed him under arrest.” Id., at 452, at 681.

In the case at bar, similar and more numerous inconsistencies

occurred throughout the testimony of the State’s witnesses. Some

of them are:

(1) Although, Officer McClanathan testified that he had

pulled Ms. Sparks over for a stop sign violation (T.pp. 9 – 12,

17 – 18), and later decided to arrest her for driving with license

suspended, he ultimately charged her with a stop sign violation

and driving without a license.11 (R.p. 2, T.pp. 40 – 41)

11 Defendant-Appellee agrees with the State when it asserts that whether Ms. Sparks was ultimately cited for “driving while license suspended” or “driving without being licensed” is of little consequence to whether or not the search subsequent to the stop in this case was a “search incident to arrest” or not. This is because both offenses are misdemeanors for which a person may be arrested. (See, State’s Brief, p. 18, fn. 4.)

What is significant about the “driving while license suspended”/“driving without being licensed” debate is what it says about Officer McClanathan’s powers of recall, and, therefore, his credibility. Until forced to back down

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(2) The uniform citation issued by Officer McClanathan states

that he observed Ms. Sparks operating a motor vehicle in violation

of North Carolina law at 4:14 a.m. on May 10, 2004 (R.p. 2); at

the suppression hearing he contradicted himself by stating he

observed Ms. Sparks running a stop sign at midnight on May 10th.

(T.p. 41)

(3) Although he placed the defendant “under arrest” at

midnight and searched the Honda vehicle she was operating almost

immediately thereafter (T. pp. 16 – 22), it took McClanathan more

than four hours to issue Ms. Sparks a simple traffic violation.

(R.p. 2, T.p. 41)

(4) McClanathan testified that immediately after completing

his brief search of the Honda vehicle driven by Ms. Sparks,12 he

called for a rotation wrecker, Mirandized Ms. Sparks, and

transported her to the Thomasville Police Department. When asked

what he did after taking Ms. Sparks to the police department, he

testified: “Began processing portions of the arrest, also cited

her for driving while license suspended.” (T.pp. 24 – 26) A

by introduction of the citation in question (T.p. 40), Officer McClanathan continued to insist that he had charged Ms. Sparks with “driving while license suspended.” He did this more than once, despite prompting from the prosecutor to the contrary. (T.pp. 26, l. 3 – 26)

Officer McClanathan indicated that he had six and one-half years of experience in law enforcement as of the time of the hearing. (T.p. 9) Any officer with that level of experience should: (1) know the difference between the two offenses, and; (2) be able to testify accurately as to what he actually arrested a defendant for in a case of this magnitude. Officer McClanathan’s failure to remember a simple, straight-forward fact like this says something, not only about his powers of recall, but also his temperament toward, and level of bias against Ms. Sparks. (See also, the officer’s comments about his prior ‘knowledge” of Ms. Sparks and her involvement with “meth.” (T.p. 11, l. 11 – 12)

12 According to Officer Hicks’ testimony, McClanathan’s search of the Honda lasted no more than “five or ten minutes at most.” (T.p. 70)

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close examination of this portion of McClanathan’s testimony tends

to show that the citation writing took place much earlier in time

than to what the citation shows and to what he testified.13

Nevertheless, McClanathan testified that he wrote the citation at

4:14 a.m., and this is what the record shows. (T.p. 41, R.p. 2)

His inability to be consistent on times which ought not to be in

dispute says much about his credibility.

(5) Although the citation in question clearly shows that Ms.

Sparks was cited for a stop sign violation and driving without a

license (R.p. 2), McClanathan continued to insist that he had, in

fact, cited her for “driving while license suspended.” (T.pp. 26)

This insistence by McClanathan (that he had cited Ms. Sparks for

driving while license suspended rather than driving without a

license) persisted, even though the courtroom prosecutor attempted

to correct him twice. (T.pp. 26, l. 3 – 26)14

13 This testimony suggests that McClanathan began writing the citation at the very beginning of the “booking” process, which would have occurred two or more hours before the time listed on the citation, 4:14 a.m. By placing an incorrect time on the citation, McClanathan tells us much about his ability to pay attention to crucial details in a case he generated.

14 The following colloquy occurred between Officer McClanathan and the prosecutor (T.P. 26, l. 1 – 11)

Q: …what, if anything, did you do?

A: Began processing portions of the arrest, also cited her for the driving while license charge.

Q: Would you repeat that, I’m sorry?

A: While at the police department, during the arrest process I cited her for driving while suspended on a uniform citation.

Q: With respect to the driving without a license, when you say you cited her, where did that take place?

A: At the police department. (emphasis added)

15

(6) Under vigorous cross-examination by defense counsel,

McClanathan finally admitted that he did not know what charge,

other than a stop sign violation, he had cited Ms. Sparks for.

(T.p. 40, l. 14 – 19)15 When finally confronted with the citation

in question, McClanathan was forced to admit that he had, indeed,

charged her with driving without a license. (T.p. 40, l. 23 – p.

41, l. 2)

(7) It is also interesting to note that Officer McClanathan

made a written report about this incident to the Thomasville PD.

Portions of it were read into the record by the officer. In that

report he stated that he initially stopped Ms. Sparks for “failing

to stop at a stop sign” and then later he cited her for “driving

15 The following colloquy occurred between Officer McClanathan and defense counsel on cross-examination.

(T.p. 40, l. 23 – p. 41, l. 2)

Q: Okay. And you were going to arrest her at that point for?

A: Driving while license suspended.

Q: You actually ended up charging driving without a license; is that correct?

A: I’m not sure. I don’t have the citation in front of me?

MR. FRALEY: If I may approach, Your Honor?

THE COURT: Yes:

(Defendant’s Exhibits Nos. 1, 2 were marked for identification.)

Q: This is Defendant’s Exhibit No 2. This looks like a photocopy of the citation?

A: Without having been licensed as provided by the Division of Motor Vehicles in the State of North Carolina.

MR. FRALEY: Driving without a license? (emphasis added to the original)

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without a license,” in direct contradiction of his earlier

testimony (T.pp. 43 – 44)

(8) That same written report indicated that McClanathan

placed Ms. Sparks under arrest. The report makes no mention of

another officer arriving at the scene at that point. Other

testimony indicated that Officer Hicks was either not present at

the time McClanathan handcuffed Ms. Sparks or she arrived shortly

thereafter. (T.p. 43, l. 21 – p. 44, l. 44)

(9) Officers McClanathan and Hicks contradicted each other

when it came to which of them actually placed Ms. Sparks in

handcuffs. (T.p. 41, l. 1 – 2; p. 69, l. 22 – 25)

(10) McClanathan also stated that he took an inculpatory,

written statement from the Ms. Sparks at the Police Department in

Thomasville. McClanathan’s later testimony, including the

statement itself, indicated that it was not taken in Thomasville,

as he earlier recollected; but, instead was taken in Lexington at

the magistrate’s office at about 5:50 a.m. on May 10th. (T.p. 32,

34, 54 – 55, 60)

(11) At some point in time, certainly no sooner than 5:50

a.m., when he concluded taking his written statement from Ms.

Sparks, Officer McClanathan then took Ms. Sparks before a

magistrate in Lexington on felony charges of possession with

intent to sell or deliver a schedule two controlled substance and

Possession of the “Collapen” [sic] pills. The record discloses

17

that the misdemeanor citation charging Ms. Sparks with driving

without a license and stop sign violation was not provided to the

magistrate considering her felony charges. The magistrate issuing

the felony charge never “signed off” on it by finding there was or

was not “probable cause” for her continued detention in that

matter. (T.pp. 57 – 58, R.p. 4)

(12) Likewise, the misdemeanor charges were never added to

Ms. Sparks’ release order for the drug charges. (T.pp. 57 – 58,

R.p. 4)

(13) The passage of more than two years in time from May 10,

2004 until the time of the suppression hearing, seems to have

affected Officer McClanathan’s memory of the events in question.

(T.p. 55, l. 3 – 8)

It is not unfair to say that McClanathan’s memory of the

events in question, especially with respect to crucial portions of

the events of May 10, 2004, were clouded by the passage of time.

It is likewise not unfair to say that with respect to significant

details of this case, McClanathan “winged it” until caught on

cross-examination by alert defense counsel. Moreover, one might

say that Officer McClanathan was “hoisted by his own petard,” the

petard in this case being the documents that he himself generated

such as the traffic citation in question and Ms. Sparks’ written

18

statement, which completely contradicted earlier testimony he

gave.16

The State suggests that Judge Collier is in error in his fact

finding due to a misinterpretation of State v. Fisher, supra.

Nothing could be farther from the truth.

The State’s assertions notwithstanding, there is no evidence

that Judge Collier misinterpreted Fisher. In fact, it appears

that he studied this Court’s decision in Fisher closely and chose

“to look behind the curtain” or “pierce the veil” of the testimony

of Officers McClanathan and Hicks as did the Fisher Court.

While the State’s testimony was unopposed by any evidence

from the defendant, Judge Collier apparently found the testimony

of these officers, as this Court did in Fisher, full of “material

inconsistencies in the State's own evidence, not simply

contradictions between the State's evidence and defendant's

evidence.” Fisher, at 454, at 682. Just as this Court did in

Fisher, Judge Collier weighed and balanced the testimony of the

officers, and found that testimony wanting. He found that the

testimony of Officers McClanathan and Hicks “was replete with

16 “A petard was a medieval small bomb used to blow up gates and walls when breaching fortifications… The word remains in modern usage in the phrase to be hoisted by one's own petard, which means "to be harmed by one's own plan to harm someone else" or "to fall in one's own trap". Shakespeare coined the now proverbial phrase in Hamlet.” Source: Wikipedia, an internet encyclopedia, (definition of Petard): http://en.wikipedia.org/wiki/Petard.

19

internal contradictions concerning whether defendant was actually

arrested.” Fisher, at 482, at 681.

Nowhere is this better evidenced than with respect to Judge

Collier’s Finding of Fact Number 12, the type-written portion

which reads as follows: “Officer McClanathan then placed the

defendant under arrest for Driving While License Revoked.” Judge

Collier then modified this finding of fact by adding the

handwritten words “testified that he”17, so that Finding of Fact

Number 12 now reads, “Officer McClanathan testified that he then

placed the defendant under arrest for Driving While License

Revoked.” (R.p. 27) (emphasis added) Obviously, there is a world

of difference between finding that a person did something, as

opposed to the person “testified” that he did something.

From this finding of fact, it is clear that Judge Collier

found Officer McClanathan less than believable when McClanathan

testified that he actually arrested the defendant at the scene.

This position is bolstered by Judge Collier’s Conclusion of Law

Number 11 which reads:

In the instant case, the evidence does not support a finding that the defendant was ever arrested for the charge of Driving While License Revoked or Driving a Vehicle Without an Operator’s License. The officer [McClanathan] did not obtain a magistrate’s order, or a magistrate’s determination of probable cause for this offense. The fact that the officer testified that he believed he arrested the defendant for the offense of Driving While License Revoked is not controlling. (R.p.

17 Following the handwritten words “testified that he” are followed by what appear to be the handwritten initials “CMC” – apparently standing for Judged Collier’s full name “Christopher M. Collier.”

20

28) (emphasis added) Compare, State v. Logner, 148 N.C. App. 135, 557 S.E.2d 191 (2001)

Judge Collier’s finding in the instant case,18 closely tracks

the ultimate finding of this Court found in Fisher: “Given the

material, internal contradictions in the State's evidence and the

complete lack of other evidence supporting the court's finding, we

conclude that competent evidence did not support the court's

finding that defendant was arrested.” Fisher at 454, at 682.

(emphasis added)

Judge Collier exercised his “responsibility of discovering

the truth” in a most diligent manner. He listened carefully to

the witnesses and assessed the demeanor and credibility of the

officers in the instant case, much in the way this Court did in

Fisher, when it found no “competent evidence” that the officers in

Fisher had ever formally arrested the defendant.

Contrary to any suggestion the State made in its brief, Judge

Collier was not required to believe all that Officers McClanathan

and Hicks said. When he saw “material inconsistencies in the

State’s own evidence,” he was not compelled to buy into the

State’s “search incident to arrest” argument.19

18 Although it is clear that Ms. Sparks was in some sort of “custody,” in that she was not free to leave the scene, it is not exactly clear what Judge Collier decided the nature of that “custody” was. It appears that he may have felt that some sort of “quasi” Terry stop took place where an officer - who was already familiar with Ms. Sparks and believed her to be involved “with meth” (T.p. 11, l. 19 – 20) - decided to go on some sort of unlawful voyage of exploration into Ms. Sparks’ personal zones of privacy. However, this is just an educated guess based on close study of the transcript and order in question.

19 “Inconsistencies or conflicts in the testimony do not necessarily undermine the trial court's findings, since such contradictions in the evidence are for the finder of fact to resolve." State v. Bromfield, 332 N.C. 24, 36, 418 S.E.2d 491, 497 (1992) (emphasis added) (citation omitted). Moreover,"[i]f there is a conflict between the State's evidence and defendant's evidence on material facts, it is the duty of the trial court to resolve the conflict[,] and such

21

Since Judge Collier’s findings of fact and conclusions are

all supported by evidence presented at the suppression hearing,

and are clearly based on Judge Collier’s assessment of the

credibility of the State’s witnesses, this Court should not

disturb them. Instead, this Court should find that they are

“binding on appeal.” Fisher at 451, at 680.

C. THE TRIAL COURT DID NOT ERR IN ORDERING SUPPRESSION OF THE EVIDENCE SEIZED FROM DEFENDANT’S VEHICLE AND OF HER STATEMENT TO THE POLICE.

Defendant-Appellee agrees with the State, when it wrote in

its brief:

The trial court’s ordering suppression of items seized during the search of the vehicle that defendant was driving and of the statement she made resulting from the search depends on the propriety of its findings of fact and conclusions of law. (State’s Brief, p. 29)

This statement notwithstanding, the State has failed to

demonstrate that Judge Collier’s findings of fact and conclusions

of law were erroneous or misleading in any way, shape or form.

Judge Collier did not err in finding that Fisher mandates

suppression. Fisher is not distinguishable in any meaningful way

from the instant case. Fisher controls this case.

The actions of Officer McClanathan violated Ms. Sparks’

rights under both the Fourth Amendment to the federal constitution

and Article 1, §§. 19, 20, & 23 of the state constitution. As a

resolution will not be disturbed on appeal." State v. Fisher, 141 N.C. App. 448, at 451, 539 S.E.2d 677, at 680 (2000).

22

result, this Court should affirm Judge Collier’s order of

suppression, dated June 8, 2006.

CONCLUSION

For all the foregoing reasons, defendant respectfully

contends that Judge Collier’s order of suppression, dated June 8,

2006, be affirmed.

Respectfully submitted this the 16th day of April, 2007.

_______________________________________Paul F. HerzogAttorney-at-Law210 E. Russell St, Ste. 101Fayetteville, NC 28301910-483-9500 (phone)910-483-9524 (fax)paulfherzog@hotmail.com

ATTORNEY FOR DEFENDANT

23

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed by mail pursuant to Rule 26 by sending it first-class mail, postage prepaid to the Clerk of the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina 27602, by placing it in a depository for that purpose.

I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon William B. Crumpler, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602, by first-class mail, postage prepaid.

Respectfully submitted this the 16th day of April, 2007.

_______________________________________Paul F. HerzogAttorney-at-Law

24

NO.COA 06 - 1527 DISTRICT TWENTY TWO

NORTH CAROLINA COURT OF APPEALS

**************************

STATE OF NORTH CAROLINA ))

VS. ) FROM DAVIDSON COUNTY) 04 CRS 54825

TARINA MARIE SPARKS )

**********************APPENDIX

**********************

Davidson Co. Clerk of Court Records 1

State’s Assignments of Error 4

Davidson Co. Traffic Citation 04 CR 4955 12

Davidson Co. Felony Warrant 04 CR 54825 13

Davidson Co. Indictment 04 CRS 54825 14

Judge Collier’s suppression Order 15

25