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State v. Davis7/20/2004
Jonas Tyrone Davis ("defendant") appeals his convictions for possessing cocaine and attaining habitual felon status. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.
The facts and procedural history pertinent to the instant appeal are as follows: At approximately 2:45 a.m. on 22 May 1999, defendant was traveling north on Highway 49 in Cabarrus County, North Carolina. Cabarrus County Sheriff's Department Deputy David Scott Stewart ("Deputy Stewart") noticed defendant's vehicle weaving in its own lane as the vehicle passed him on Highway 49. Deputy Stewart followed defendant's vehicle and observed the vehicle continuing to weave within its own lane. Deputy Stewartcontinued to follow the vehicle as it turned onto Zion Church Road, where he observed the vehicle traveling at a speed of thirty-five miles per hour in a forty-five miles per hour zone. Over the next mile and a half, Deputy Stewart observed the vehicle cross the center line of Zion Church Road on four occasions. Immediately after the fourth instance, Deputy Stewart activated his patrol car's blue lights and initiated a vehicle stop.
Deputy Stewart approached defendant's vehicle and detected a faint odor of alcohol while talking to defendant. Deputy Stewart also noticed that defendant had glassy eyes and mumbled speech. Defendant denied that he had been drinking, but admitted that he had smoked marijuana earlier during the evening. After requiring defendant to exit the vehicle, Deputy Stewart observed defendant leaning on the vehicle for support. Deputy Stewart then administered road-side sobriety tests which defendant was unable to perform. After a check of defendant's driving record revealed that defendant's license had been revoked, Deputy Stewart arrested defendant for driving with a revoked license and for driving while impaired.
While performing a pat-down search of defendant, Deputy Stewart discovered in defendant's front vest pocket what subsequent laboratory analysis identified as marijuana and crack cocaine. Immediately after the search, defendant was taken to Northeast Memorial Center to have a sample of his blood drawn. Prior to administering the test, Concord Police Department Officer Jeffery Carlisle Worth ("Officer Worth") advised defendant of his rightspertaining to the test. The blood test revealed the presence of both cocaine and marijuana in defendant's blood.
Defendant was indicted on 23 August 1999 for possession of cocaine. On 1 October 2001, an indictment alleging habitual felon status was issued against defendant. On 10 December 2001, a superceding indictment again alleging habitual felon status was issued against defendant. Defendant was first tried the week of 8 April 2002. On 10 April 2002, after concluding that the jury was unable to reach a unanimous verdict in defendant's trial, the trial court declared a mistrial. Defendant was tried again the week of 24 June 2002. At his second trial, a jury found defendant guilty of possession of cocaine and guilty of habitual felon status. It is from these convictions that defendant appeals.
We note initially that defendant's brief contains arguments supporting only five of his original eleven assignments of error. Pursuant to North Carolina Rule of Appellate Procedure 28(b)(6) (2004), the six omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.
The issues presented on appeal are whether the trial court erred by (I) denying defendant's motion to suppress the evidence obtained during the investigatory stop; (II) adopting the previous findings of fact, conclusions, and rulings of la
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