Opinion
No. COA10-999
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgment entered 20 November 2009 by Judge Robert F. Floyd, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 9 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster, III, for the State. Janet Moore, Attorney At Law LLC, by Janet Moore, for defendant-appellant.
Johnston County No. 09 CRS 51433.
Michael Lamont Bynem ("defendant") appeals the trial court's judgment entered upon a jury verdict finding him guilty of trafficking in cocaine by possession, trafficking in cocaine by transportation, and possession of drug paraphernalia. We find no error.
On the evening of 5 March 2009, Detective Donald Pate ("Detective Pate") and Detective Jeffrey Cannady ("Detective Cannady") (collectively, "the detectives") of the Johnston County Sheriff's Department ("JCSD") were on patrol near hotels in Selma, North Carolina. The detectives received "complaints from concerned citizens and from other law enforcement officers of drug activity going on" near the hotels. At 9:00 p.m., a Toyota pickup truck ("the truck") entered the second driveway of the parking lot of the Royal Inn hotel ("the hotel"), located on Industrial Drive near Interstate 95. Detective Cannady drove an unmarked patrol vehicle, Detective Pate sat in the front passenger seat, and they followed the truck.
The second driveway led directly to the rear of the hotel, where the detectives had "frequent problems or get complaints from." The truck parked in a space in the rear of the hotel, in front of the pool area near other parked vehicles, and then turned off its lights. The detectives parked their patrol vehicle approximately four or five spaces away, turned off their lights, and observed the truck.
A man exited the truck, walked to the sidewalk in front of the truck, and paused briefly before walking forward into a grassy area near the pool. Detective Pate then observed another man, later identified as defendant, exit a Honda Accord ("the Accord"). The Accord was parked on the other side of the detectives' vehicle, approximately four parking spaces away from the truck, and Detective Pate was approximately fifty yards from each vehicle.
Detective Pate observed the two men walk separately in straight lines toward the pool. The two men continued walking separately until they reached a "slightly" lit grassy area approximately 30 yards from their vehicles, where they stood for a short time. There was no entrance to the hotel or the pool in the direction the two men were walking, and no one was in the pool. However, Detective Pate observed one or two people walking around the pool area.
Although neither man appeared to carry anything or reach into his pockets, they looked in the direction of the detectives and exchanged a "dap." Detective Pate recognized from his training and experience that this appeared "to have been a hand-to-hand transaction between two individuals" as a method to exchange drugs.
A "dap" was described at trial as a street handshake and embrace where two men pull together and touch chests.
Immediately after exchanging the "dap," each man returned to his own vehicle in a "V-line path." The men exited the hotel parking lot separately in their own vehicles. The truck exited the hotel parking lot via the first entrance that led to the reception area and turned left out of the parking lot. Detective Pate then contacted Lieutenant Jack Coats ("Lt. Coats") of the JCSD and requested his assistance. The detectives followed defendant as he drove the Accord and turned right onto Industrial Drive heading toward U.S. Highway 70. The Accord then immediately turned and entered the parking lot of the Kentucky Fried Chicken ("KFC") next door.
When defendant entered the KFC parking lot, the detectives activated their emergency lights and defendant stopped the Accord. Detective Cannady exited the patrol vehicle and approached the Accord. He asked defendant for his license and registration, and defendant complied. However, defendant held the steering wheel at the "10 and 2" position and looked straight ahead as he told the detectives they had "no reason" to stop him. The detectives asked defendant three times to exit the Accord, and he refused each time.
Detective Pate recognized defendant from previous interactions during the course of performing his law enforcement duties. On these prior occasions, defendant was "very compliant" with requests from Detective Pate and other officers. However, on this occasion, defendant appeared nervous and acted "totally out of the norm."
Detective Pate was concerned that defendant might flee in the Accord. Therefore, Detective Pate completely restrained defendant with handcuffs and removed him from the Accord. At the time Detective Pate removed defendant from the Accord, the detectives observed a clear bag with white material on the driver's seat. The bag was located in an area which would have been between the seat of defendant's pants and the driver's seat of the vehicle. Although the detectives believed the white material to be cocaine, Detective Pate asked defendant, "What's that?" and defendant replied, "Oh."
Detective Pate placed defendant under arrest and asked him if he had anything else on his person. Defendant replied that he had something in his coat pocket. Detective Cannady searched defendant's coat pocket and discovered a Crown Royal bag with five larger bags of what appeared to be cocaine, a digital scale, and $971.00 in currency.
The detectives then placed defendant in the passenger seat of their patrol vehicle, searched the Accord, and found $51.00 in the glove box. The detectives transported defendant to the JCSD, and on the way, Detective Pate read defendant his Miranda rights. Detective Pate asked defendant if he had any questions. Defendant stated that he picked up the cocaine from an unnamed subject for $4,000.00.
Defendant was indicted for trafficking in cocaine by possession, trafficking in cocaine by transportation, trafficking in cocaine by manufacture, possession of drug paraphernalia, and attaining the status of a habitual felon. On 9 November 2009, defendant filed a motion to suppress the traffic stop, his arrest and search, and the results of the search ("the motion to suppress"). The motion to suppress was heard on 16 November 2009. Detective Pate was the only witness to testify for the State. Defendant did not present evidence. The trial court summarily denied defendant's motion.
Defendant's case was heard before the 16 November 2009 criminal session of Johnston County Superior Court. On 20 November 2009, the jury returned a verdict finding defendant guilty of trafficking in cocaine by possession, trafficking in cocaine by transportation, and possession of drug paraphernalia. Defendant then plead guilty to attaining the status of a habitual felon. The trial court sentenced defendant to a minimum term of 116 months to a maximum term of 149 months in the custody of the North Carolina Department of Correction, and ordered defendant to pay a fine of $50,000.00. Defendant appeals.
Defendant was found not guilty of trafficking in cocaine by manufacture.
Defendant's sole issue on appeal is that the trial court erred by denying his motion to suppress. We disagree.
Motions to suppress evidence are governed by Article 53 of Chapter 15A of our General Statutes. N.C. Gen. Stat. § 15A-974 states, "Upon timely motion, evidence must be suppressed if: (1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina[.]" N.C. Gen. Stat. § 15A-974(1) (2009). The legal grounds upon which defendant sought to suppress the traffic stop, his arrest and search, and the results of the search were constitutional, so a pretrial motion to suppress was required. State v. Reavis, ___ N.C. App. ___, ___, 700 S.E.2d 33, 36-37 (2010).
The exclusive method of challenging the admissibility of evidence upon the grounds specified in G.S. 15A-974 is a motion to suppress evidence which complies with the procedural requirements of G.S. § 15A-971 et seq. The burden is on the defendant to demonstrate that he has made his motion to suppress in compliance with the procedural requirements of G.S. § 15A-971 et seq.; failure to carry that burden waives the right to challenge evidence on constitutional grounds.
State v. Jones, 157 N.C. App. 110, 113, 577 S.E.2d 676, 678-79 (2003) (citations and quotation marks omitted).
"N.C. Gen. Stat. § 15A-975 sets forth the requirements for a motion to suppress, which are applicable to defendant's constitutional arguments . . . ." Reavis, ___ N.C. App. at ___, 700 S.E.2d at 37 (citing N.C. Gen. Stat. § 15A-975 (2007)). N.C. Gen. Stat. § 15A-975 states, in pertinent part:
(a) In superior court, the defendant may move to suppress evidence only prior to trial unless the defendant did not have reasonable opportunity to make the motion before trial or unless a motion to suppress is allowed during trial under subsection (b) or (c).
(b) A motion to suppress may be made for the first time during trial when the State has failed to notify the defendant's counsel or, if he has none, the defendant, sooner than 20 working days before trial, of its intention to use the evidence, and the evidence is:
(1) Evidence of a statement made by a defendant;
(2) Evidence obtained by virtue of a search without a search warrant; or
(3) Evidence obtained as a result of search with a search warrant when the defendant was not present at the time of the execution of the search warrant.
Section 15A-976 of the North Carolina General Statutes governs the timing of pretrial motions to suppress:
(a) A motion to suppress evidence in superior court may be made at any time prior to trial except as provided in subsection (b).
(b) If the State gives notice not later than 20 working days before trial of its intention to use evidence and if the evidence is of a type listed in G.S. 15A-975(b), the defendant may move to suppress the evidence only if its motion is made not later than 10 working days following receipt of the notice from the State.
N.C. Gen. Stat. § 15A-976 (2009). When a defendant fails to timely file a motion to suppress, "he has waived his right to contest the admissibility of the evidence at trial or on appeal on constitutional grounds." State v. Tate, 300 N.C. 180, 183, 265 S.E.2d 223, 226 (1980) (citing State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978)).
In the instant case, the State filed a "Notice of Intention to Use Evidence" on 7 May 2009, and three separate "Disclosure Certificates," dated 7 May, 2 June, and 13 July 2009. The purpose of the certificates was to put defendant on notice that the State intended to introduce at trial, inter alia, evidence of a statement made by defendant. In the Notice of Intention to Use Evidence, the State provided defendant "with a copy of the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes or the prosecution of defendant" received by 13 July 2009, including a laboratory report from the State Bureau of Investigation regarding an examination of the white material found in the clear bag in the Accord.
In addition to the State's notice to defendant, on 1 September 2009, the trial court filed a "Scheduling Order" which stated, in pertinent part:
1. All pre-trial motions (except those required to be heard before the Trial Judge) shall be filed and served upon opposing counsel on or before OCTOBER 19, 2009.
2. All pre-trial motions shall be heard on NOVEMBER 2, 2009.
3. The trial of this case shall be scheduled for the session of Superior Court beginning NOVEMBER 16, 2009.
Defendant filed the motion to suppress on 9 November 2009, and it was heard before the 16 November 2009 criminal session of Johnston County Superior Court, the same day as defendant's trial. During the hearing, the State informed the court that it provided defendant "full discovery, all the statements, and also we gave lab reports and also inventory sheets of chain of custody as to the actual drugs that were seized from the defendant, also some photographs." The State asked the court "to summarily deny" defendant's motion "because there was a scheduling order according to the local rules." The motion was scheduled to be heard during the week of 2 November 2009. The State added that it did not receive this motion until 9 November 2009. The State also argued that, according to N.C. Gen. Stat. §§ 15A-975 and 976, motions to suppress are required to be filed prior to trial unless the State does not give the defendant proper notice of the evidentiary information. Here, the State "provided a full report with statements, and knowledge of the drugs — narcotics that were seized."
Defendant argued that he complied with the statutes and the local rules. Defendant contends that his motion was timely because he complied with Local Rule 5.4, which states:
Except under circumstances which could not have been reasonably foreseen by the movant, all motions filed beyond the established deadlines are subject to summary dismissal by the court. This provision does not apply to motions, such as motions in limine, which are appropriately directed to the judge presiding at trial.
The State concedes that defendant's motion was a motion in limine. See also State v. Grooms, 353 N.C. 50, 65-66, 540 S.E.2d 713, 723 (2000) (A pretrial motion to suppress is a type of motion in limine.).
Defendant's counsel requested that the Court hear the motion since he believed that the motion had been filed timely and served upon the State. He then engaged in the following colloquy with the court:
THE COURT: Now, what was your reason for not filing the motion, in accordance with the scheduling order, on or before October 19, 2009?
[Counsel for defendant]: Well, Your Honor, we were looking at a couple of different things. One thing that we were looking at is there was a second individual that the State alleged in the discovery that was driving a motor vehicle and that that individual is the individual that they followed into the parking lot.
My client was unable to recall the name of that individual that spoke with him briefly on that particular evening. So, there's been an ongoing effort to try to locate and determine who that individual was.
The court then took the State's motion to summarily deny defendant's motion "under advisement," and proceeded with the hearing.
Following the hearing, the court made the following findings:
[T]hat even though there was no particularized notice as to the State's intent to use the statements — not the statements — the stop as evidence and the search and seizure as evidence against the defendant, that the information was contained in the general discovery packet given to defense counsel; that thereafter defense counsel had sufficient time and notice to comply with the local rules and the discovery order — discovery scheduling order and failed to timely file his motion for — to suppress, in violation of the discovery scheduling order.
The trial court then summarily denied defendant's motion to suppress.
Even though the State did not provide "particularized notice" as to its intent to use "the stop as evidence and the search and seizure as evidence against the defendant," the State provided defendant that information in the general discovery packet by 13 July 2009, approximately eighty working days before the start of the trial. Pursuant to N.C. Gen. Stat. § 15A-976, defendant was required to file his motion to suppress within ten working days of his receipt of the State's notice. However, defendant did not file his motion to suppress until 9 November 2009, more than 180 days after the State filed its Notice of Intention to Use Evidence, and nearly 120 days after the State filed its final Disclosure Certificate. In addition, defendant's motion to suppress was filed three weeks after the deadline for filing and serving motions that was ordered by the trial court in the Scheduling Order. Furthermore, defendant's motion was filed one week after the trial court ordered all pre-trial motions to be heard, and defendant failed to show that his motion was required to be heard by the trial judge.
Since defendant failed to comply with the procedural requirements of N.C. Gen. Stat. § 15A-971 et seq., Local Rule 5.4, and the Scheduling Order, he waived his right to contest the admissibility of the evidence at trial or on appeal on constitutional grounds. The trial court properly denied defendant's motion to suppress. This issue on appeal is overruled. Defendant received a fair trial, free from error.
No error.
Judges STROUD and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).