Opinion
No. COA08-1220.
Filed September 15, 2009.
Haywood County Nos. 08CRS50235, 08CRS50236.
Appeal by Defendant from judgments entered 2 July 2008 by Judge J. Marlene Hyatt in Superior Court, Haywood County. Heard in the Court of Appeals 8 June 2009.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Carol Ann Bauer for Defendant.
On 2 July 2008, a jury found Angela Lynn Hill ("Defendant") guilty of possession of marijuana with intent to sell and deliver, and knowingly maintaining a building for the purpose of unlawfully keeping and selling marijuana. The trial court sentenced Defendant to two consecutive terms of six to eight months imprisonment, suspended for 36 months on the condition of supervised probation. From these judgments, Defendant appeals.
"Except as authorized by this Article, it is unlawful for any person: (1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance[.]" N.C. Gen. Stat. § 90-95(a) (2007). Pursuant to N.C. Gen. Stat. § 90-94, marijuana is a Schedule IV controlled substance.
"It shall be unlawful for any person . . . [t]o knowingly keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article[.]" N.C. Gen. Stat. § 90-108(a)(7) (2007).
I. Procedural History and Factual Background
On 19 May 2008, Defendant filed a motion to suppress all evidence seized on 12 January 2008, the date of Defendant's arrest. The trial court held a pretrial hearing on the motion on 1 July 2008, at which the following evidence was presented:
On 12 January 2008, at approximately 7:30 p.m., Officer Brandon Gilmore of the Waynesville Police Department received information from an informant. Officer Gilmore knew the informant, but had not used him as an informant prior to the incident in the present matter. The informant informed Gilmore that he had been at Defendant's apartment that evening where he smoked marijuana and observed a firearm. From the information, Gilmore believed there to be marijuana and a "sawed-off-looking shotgun" in Defendant's apartment.
Gilmore was not able to respond to the informant's call until 10:30 p.m., at which time he met Officers William Benhart and Paige Snowden, of the Waynesville Police Department, in a parking lot, believed to be the General Insurance lot, below Defendant's apartment building. The officers then walked over to the front of Defendant's residence. Still outside Defendant's apartment, Gilmore saw that the door was cracked open approximately six inches. Through the opening, Gilmore could see a white female sitting in a chair and could hear some arguing back and forth, although it did not sound like a physical altercation. Gilmore could also smell an odor of burnt marijuana coming through the door.
After smelling the marijuana, Gilmore stood outside for approximately one minute before announcing "Waynesville Police Department" as he knocked on the partially open door. The force of Officer Gilmore's knock further opened the door. As the door opened, someone inside attempted to shut the door in Gilmore's face. Based on the information provided by the informant, Gilmore felt he needed to gain entry.
Gilmore pushed the door open and observed a male occupant, who appeared to throw something underneath a couch. Defendant was noticeably upset and told Gilmore he was not allowed inside. Defendant asked if Gilmore had a search warrant. In response, Gilmore tried to explain that he did not need a search warrant as he just wanted to talk.
Gilmore testified that Defendant told him she had smoked marijuana before he arrived. In addition, Gilmore observed some loose marijuana on the coffee table, but not enough to constitute a felony amount. When Defendant turned to walk away from Gilmore, he grabbed her by the arm since he "didn't know if she was going to possibly retrieve this firearm." Officers Gilmore and Benhart restrained Defendant, who was then patted down and placed in a patrol car. The officers arrested Defendant for obstructing the investigation.
After Defendant was secured, the officers cleared the apartment of the other occupants. Once everyone was outside, Officers Gilmore and Benhart looked under the couch where the male occupant had thrown something. The officers conducted a later search with a K-9. Gilmore testified that the officers searched the areas in which a firearm could be located, although no firearm was found. Officer Benhart identified marijuana, a smoking bong, and shotgun shells in the corner of a closet, which was blocked only by "a curtain or something or like a piece of cloth hanging down." Defendant was transported to the magistrate's office on an outstanding warrant which was later revealed to apply to another Angela Hill.
At the close of the evidence at the pretrial hearing, counsel for Defendant argued that the search of Defendant's apartment was unconstitutional because there were no exigent circumstances to justify a warrantless search. See Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639 (1980) (exigent circumstances must exist to justify law enforcement's warrantless entry into suspect's home). The trial court denied Defendant's motion to suppress, making the following findings of fact:
[T]hat Officer Gilmore received information from [an] informant that he had been at the residence on January the 12th, 2008, had smoked marijuana and observed a firearm in the residence. After receiving this information — although not immediately after receiving the information, the officers went to the residence initially for a general inquiry as to whether there was the gun and the marijuana.
At the residence, upon stepping onto the stoop of the residence, there was an overwhelming odor of marijuana coming from the apartment and what sounded like an argument within the apartment to the officers. Based upon these facts, there was [sic] sufficient exigent circumstances for the officers to investigate and sufficient probable cause as well.
The evidence presented at trial mirrored, for the most part, the evidence presented at the pretrial hearing. Defendant objected to Officer Gilmore's testimony as to what he saw when he entered Defendant's apartment. However, Defendant did not object when Officer Benhart and Officer Snowden testified as to the evidence obtained from the search of Defendant's apartment. Officer Benhart and Officer Snowden confirmed that as a result of the search of the apartment, the officers found a bag of shotgun shells, a water bong, two bags of marijuana in the closet, and seven one-gallon-sized bags of marijuana in a cooler.
[STATE:] When the [apartment] door opened, could you describe the apartment as you saw it.
[DEFENSE COUNSEL]: Your Honor, just for the record, I make my earlier objection.
THE COURT: The record will so reflect.
At the police station, Defendant gave a statement admitting to buying half a pound of marijuana for $400. Defendant also admitted that she had seven ounces of marijuana hidden under her couch and half an ounce or less of marijuana in her pocket, and that she had smoked about 20 grams before the police arrived. Defendant did not object to the admission of this statement at trial.
Defendant renewed her motion to suppress at the close of the State's evidence. This motion was denied. Defendant did not present any evidence at trial.
The jury found Defendant guilty of possession of marijuana with intent to sell and deliver and intentionally maintaining a building used for the purpose of unlawfully keeping and selling marijuana. From judgment entered upon the jury verdict and the denial of her motion to suppress, Defendant appeals.
II. Discussion
Defendant argues the trial court erred in denying her motion to suppress the evidence seized from her apartment during the officers' warrantless search. For the following reasons, we are constrained to conclude that Defendant's argument is not properly before us.
N.C. Gen. Stat. § 8C-1, Rule 103(a) provides that "[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." N.C. Gen. Stat. § 8C-1, Rule 103(a) (2007). However, "[t]here is a direct conflict between this evidentiary rule and North Carolina Rule of Appellate Procedure 10(b)(1), which [our Supreme Court] has consistently interpreted to provide that a trial court's evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial." State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007); see State v. Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004); State v. Grooms, 353 N.C. 50, 65-66, 540 S.E.2d 713, 723 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001); State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam); State v. Bonnett, 348 N.C. 417, 437, 502 S.E.2d 563, 576-77 (1998), cert. denied, 525 U.S. 1124, 142 L. Ed. 2d 907 (1999). In Oglesby, our Supreme Court resolved the conflict between evidentiary Rule 103(a)(2) and N.C. R. App. P. 10(b)(1), holding that
"In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal." N.C. R. App. P. 10(b)(1).
[t]he Constitution of North Carolina expressly vests in this Court the "exclusive authority to make rules of procedure and practice for the Appellate Division." N.C. Const. art. IV, § 13, cl. 2. Although Rule 103(a)(2) is contained in the Rules of Evidence, it is manifestly an attempt to govern the procedure and practice of the Appellate Division as it purports to determine which issues are preserved for appellate review. Accordingly, we hold that, to the extent it conflicts with Rule of Appellate Procedure 10(b)(1), Rule of Evidence 103(a)(2) must fail.
Oglesby, 361 N.C. at 554, 648 S.E.2d at 821.
In Oglesby, the defendant made a pretrial motion to suppress an incriminating statement made to law enforcement officers, but he did not renew his objection at trial. Id. at 552, 554, 648 S.E.2d at 820, 821. Thus, "[a]s a consequence of the invalidity of Rule 103(a)(2) and the application of Appellate Rule 10(b)(1)[, the defendant] failed to preserve the admissibility of his incriminating statement for appellate review." Id. at 554-55, 648 S.E.2d at 821. Accordingly, in the present case, Defendant's pretrial motion to suppress was insufficient to preserve for our review Defendant's argument as to the admissibility of the evidence obtained during the search of Defendant's apartment.
Further, Defendant has not assigned error to the trial court's ruling on her objection to Officer Gilmore's testimony or her motion to suppress which was renewed at the close of all evidence. However, even assuming arguendo that Defendant had assigned error to the court's ruling at trial, Defendant waived any objection to the evidence at issue by failing to object to Officer Benhart's and Officer Snowden's testimony. Although Defendant objected initially to Officer Gilmore's testimony, Officers Benhart and Snowden later testified without objection as to what was discovered during the search of Defendant's apartment. "Where evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984); see State v. Alford, 339 N.C. 562, 569-70, 453 S.E.2d 512, 515-16 (1995) (defendant waived right to raise objections on appeal where record reflected that the evidence objected to by defendant had been admitted without objection at other times during the trial). Accordingly, Defendant's argument is not properly preserved for our review, and her appeal is thus
Dismissed.
Chief Judge MARTIN and Judge HUNTER, JR. concur.
Report per Rule 30(e).