Opinion
No. COA03-1019
Filed 7 September 2004
Criminal Law; Searches and Seizures — motion to suppress — order entered out of term and out of session
The trial court erred in a robbery with a dangerous weapon case by denying defendant's motion to suppress seized evidence where the order was entered out of term and out of session, and defendant is entitled to a new trial, because: (1) an order of a superior court in a criminal case must be entered during the term, during the session, in the county, and in the judicial district where the hearing was held, and an order entered in violation of these requirements is null and void and without legal effect absent consent of the parties; (2) in the instant case, the trial court did not make a ruling on the motion in court during the term and the State admitted that the court entered the order after the term had expired; (3) even though the evidence of guilt was overwhelming, the question of prejudice to defendant is never reached when the order denying the motion to suppress was null and void and of no legal effect; and (4) even though defendant did not raise this issue at trial, jurisdictional questions which relate to the power and authority of the court to act in a given situation may be raised at any time.
Judge LEVINSON dissenting.
Appeal by defendant from judgment entered 28 August 2002 by Judge W. Osmond Smith, III, in Caswell County Superior Court. Heard in the Court of Appeals 29 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Everett Hite, L.L.P., by Kimberly A. Swank, for defendant appellant.
Defendant John Marvin Trent was charged with robbery with a dangerous weapon. The State's evidence tended to show that Sayed Rawi operated a convenience store located across from the Casville Volunteer Fire Department in Caswell County. He knew defendant and Steven Brown (Brown) because the men were regular customers. On 8 May 2001, the two men entered the convenience store at about 10:00 p.m. Defendant had a handgun, and Brown had a shotgun. Both men demanded money. Rawi complied with this request and gave the men some money. However, shortly thereafter, Brown took the barrel of his shotgun and hit Rawi in the head. At the time, defendant and Brown were wearing masks. However, the masks were too large for the suspects' faces, and Rawi could "see everything."
After defendant and Brown left, Rawi called 911. Deputy John Loftus reached the convenience store about five minutes after learning about the robbery. At that time, Rawi told Deputy Loftus that defendant and Brown were the perpetrators. Deputy Loftus then received a call indicating that law enforcement officers stopped the suspects. Deputy Loftus escorted Rawi to the stopped vehicle, and Rawi identified the suspects without hesitation.
Defendant received and waived his Miranda warnings. Initially, defendant denied any involvement in the robbery. Deputy Loftus noticed a ski mask with a white surgical mask attached over the mouth sitting in plain view in the back of the vehicle. Deputy Loftus also searched the vehicle and found $171.00 in cash.
Defendant's mother, Jean Trent, arrived at the scene. She took Deputy Eugene Riddick to her home where Deputy Riddick seized a shotgun and a pistol. He found the shotgun in defendant's closet and the pistol under defendant's mattress. Jean Trent also stated that she was "tired of covering up for John with guns at the house."
Officer Robert Pearson of the North Carolina Highway Patrol was in his vehicle when he received a "BOLO" (be on the lookout) for suspects in a convenience store robbery. Officer Pearson stopped at the store and learned that the two suspects, a black male and a white male, had fled on foot. After getting into his car and driving onto Ashland Road, Officer Pearson saw a car slow down and stop beside his patrol car. Officer Pearson thought that the occupants had information, but he became suspicious after the car began to move away. Officer Pearson followed the vehicle and the driver stopped near the shoulder of the road.
As Officer Pearson stopped his car, Deputy Riddick arrived. Officer Pearson approached the black male driver, while Deputy Riddick approached the white male passenger. Officer Pearson noticed that the driver was sweating, even though it was not hot that evening. He believed that the driver must have been engaged in some kind of physical activity because the driver was sweating so profusely.
Defendant offered evidence including testimony from his father, Clyde Trent. Clyde Trent testified that the pistol was his. He also indicated that the gun was jammed, and often a shell would not go into the chamber.
Danielle Kirby testified that she is Steven Brown's girlfriend. She owned the vehicle that Brown was driving on 8 May 2001. Kirby testified that she worked at a restaurant and that Brown was going to pick her up when her shift ended. Kirby testified that she kept her tip money in the vehicle's glove compartment until Brown decided to hide it in a tissue box. Finally, Kirby mentioned that on 8 May 2001, the amount would have been almost $200.00, but she was not sure about the exact amount. On 28 August 2002, the jury found defendant guilty as charged. Defendant appeals.
On appeal, defendant argues that the trial court erred by denying defendant's motion to suppress where the order was entered out of term and out of session. We agree and conclude that defendant is entitled to a new trial.
"[A]n order of the superior court, in a criminal case, must be entered during the term, during the session, in the county and in the judicial district where the hearing was held." State v. Boone, 310 N.C. 284, 287, 311 S.E.2d 552, 555 (1984). Absent consent of the parties, an order entered in violation of these requirements is null and void and without legal effect. Id.
Our Supreme Court has considered this issue previously and has reached different conclusions based on the circumstances of each case. Defendant claims that he is entitled to a new trial based on the Court's decision in Boone, while the State contends that State v. Horner, 310 N.C. 274, 311 S.E.2d 281 (1984) is controlling.
We believe that the decision in State v. Palmer, 334 N.C. 104, 431 S.E.2d 172 (1993) clarifies the difference between Boone and Horner. As interpreted by the Palmer Court, Boone stands for the proposition that an order is a nullity if "the judge d[oes] not make a ruling on the motion in court during the term, but sign[s] the order after the term ha[s] expired." Id. at 108, 431 S.E.2d at 174 (emphasis added). In contrast, the trial judge in Horner made a ruling on the motion "in open court during the term at which the motion [was] heard." Id. Thus, the fact that the written order was filed after the term concluded did not invalidate it. Id. at 108-09, 431 S.E.2d at 174.
In the present case, the motion to suppress hearing commenced on 11 October 2001. The hearing was continued and resumed on 17 January 2002. On that date, the trial judge stated: "Rather than rule on this right now, I'm going to review the evidence presented in greater detail, consider the authority argued and submitted by the parties and give you a ruling subsequently." At the end of his remarks, the judge stated, "I will try to get you a ruling as soon as I reasonably can after giving it thorough consideration." Thus, at that stage of the litigation, there was no ruling in open court during the Spring 2002 Term.
The judge held no further proceedings until 26 August 2002. This was seven months after the prior hearing. More importantly, it occurred during a new term which began in the Fall of 2002. See State v. Smith, 138 N.C. App. 605, 607-08, 532 S.E.2d 235, 237 (2000) (explaining that "`term' in this jurisdiction generally refers to the typical six-month assignment of superior court judges to a judicial district, while `session' designates the typical one-week assignment to a particular location during the term"), disc. review improvidently allowed, 353 N.C. 355, 543 S.E.2d 477 (2001). It was at this 26 August 2002 hearing that the court first announced, on the record and in open court, that defendant's motion to suppress was denied. Further, the State acknowledges that the written order was not filed until 21 August 2003 which was "out of session and term as those categories are traditionally defined."
Based on the principles set forth in Boone and Horner, we must conclude that this order was a nullity. As was the case in Boone, the judge in the present case did not make a ruling on the motion in court during the term. Furthermore, the State admits that the court entered the order after the term had expired. While we do not intend to emphasize form over substance, the circumstances of this case and the prior decisions of our appellate courts compel the result we reach today. The proper remedy is to grant defendant a new trial. Boone, 310 N.C. at 295, 311 S.E.2d at 559.
Although the judge stated that he informed the parties of his decision before announcing it on 26 August 2002, nothing in the record indicates that this was done in open court or during the Spring 2002 Term. As we have indicated, for the order to be valid, the ruling must be made in open court during the term in which the motion was heard. Palmer, 334 N.C. at 108, 431 S.E.2d at 174.
The dissent suggests that the overwhelming evidence of defendant's guilt should require this Court to assess the record for prejudice before we order a new trial. In Boone, defendant was arrested after the police stopped his vehicle and discovered over 10 pounds of marijuana in the trunk. Id. at 285-86, 311 S.E.2d at 554. Even though the evidence of guilt was likewise overwhelming, our Supreme Court stated that the order denying the motion to suppress "being null and void and of no legal effect . . . the question of prejudice to the defendant is never reached." Id. at 289, 311 S.E.2d at 556. Since our Supreme Court has previously determined that a new trial should be awarded without looking to determine prejudice, we have no authority to set out a different analysis today.
Finally, the State argues that defendant may not make this objection on appeal because he failed to raise it at trial. However, our Supreme Court expressly rejected this position in Boone and noted that "[j]urisdictional questions which relate to the power and authority of the court to act in a given situation may be raised at any time." Id. at 288, 311 S.E.2d at 556.
For the reasons mentioned herein, defendant is entitled to a
New trial.
Judge HUDSON concurs.
Judge LEVINSON dissents.