Opinion
No. COA12–127.
2012-08-7
STATE of North Carolina v. Marvin Ceasar ROMERO, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Michael E. Bulleri, for the State. James N. Freeman, Jr. for defendant-appellant.
Appeal by defendant from judgment entered 9 August 2011 by Judge Arnold O. Jones, II in Johnston County Superior Court. Heard in the Court of Appeals 23 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Michael E. Bulleri, for the State. James N. Freeman, Jr. for defendant-appellant.
GEER, Judge.
Defendant Marvin Ceasar Romero appeals from a judgment entered upon a jury verdict finding him guilty of trafficking in opiates by transportation and by possession. On appeal, defendant primarily argues that he was denied effective assistance of counsel when his trial counsel failed to file a motion to suppress evidence found and statements made during a Terry frisk. Because we hold that any motion to suppress should have been denied, defendant has not demonstrated that his counsel was ineffective.
Facts
The State's evidence at trial tended to show the following facts. On 14 October 2010, Chief Casey Jones of the Micro Police Department stopped a vehicle with inoperable taillights. Chief Jones smelled alcohol immediately as he approached the vehicle and noticed a puddle of liquid with a “white foamy residue on top” around defendant's feet in the rear passenger side of the vehicle.
Because the female driver appeared very nervous, Chief Jones had her step out of the vehicle. After speaking with the driver, Chief Jones walked to the rear passenger side to speak with defendant. At that point, Chief Jones could see that the floorboard was still damp, but noticed that the white foam was gone.
Chief Jones asked defendant to step out of the vehicle. He placed defendant in handcuffs for officer safety while he conducted a Terry frisk of defendant to see whether defendant had a weapon. During the frisk, Chief Jones noticed that when he reached halfway up defendant's inner thigh, defendant's leg muscles would get “extremely tight” as if he was clenching his legs together. Chief Jones asked defendant three times if he had anything in his genital or anal area, and each time defendant said “no.” Chief Jones then told defendant that he “knew something was in there based off the pat and feel, that [defendant] would remove it or [he] would remove it for him.” Defendant finally admitted that he did have something in his groin area, and, after Chief Jones removed one handcuff, he pulled out a pill bottle. Defendant told Chief Jones that the pills belonged to his mother. When defendant failed to answer any further questions, Chief Jones put the handcuffs back on and put defendant in his patrol vehicle.
While Chief Jones was focusing on the remaining passengers in the car, he heard the door of his patrol car click. When he looked back, he saw that defendant was no longer in the patrol car. Approximately two and a half hours later, officers found defendant, still handcuffed, lying in a ditch.
The pill bottle taken from defendant was provided to the State Bureau of Investigation for processing. Agent Jennifer West, a special agent with the North Carolina State Crime Lab, testified that she tested and analyzed the pills in the bottle. According to Agent West, there were 30 1/2 oxycodone pills. The total weight of the oxycodone was 14 grams.
On 7 March 2011, defendant was indicted on two counts of trafficking in opiates, synthetic opiates, and opiate derivatives, with one count trafficking by transportation and one count trafficking by possession. Prior to trial, it came to the attention of the trial court that defendant had previously sent a letter to the Chief District Court Judge of Johnston County complaining about his attorney. Defendant's attorney, who found out about the letter the night before trial, moved to withdraw as counsel of record. After questioning defendant and counsel and making findings, the court denied the motion to withdraw, and trial commenced.
At trial, when the State moved to introduce the pill bottle, defense counsel objected by saying: “We would object, Your Honor, and would like to be heard.” The specifics of defendant's objection were never stated on the record. A sidebar conference took place, and the trial court overruled the objection, stating only: “Objection is overruled as to what the testimony is. It speaks for itself.” The pill bottle was then published to the jury.
Defendant did not put on any evidence, and the jury convicted him of both trafficking counts. The trial court sentenced defendant to a term of 90 to 117 months imprisonment. Defendant timely appealed to this Court.
I
Defendant contends that the evidence of the pill bottle, as well as defendant's statements to Chief Jones during the Terry frisk, should have been excluded on the grounds that the pill bottle was seized through an unconstitutional search and the statements were obtained in violation of his Miranda rights. Defendant acknowledges that he did not file a motion to suppress and that his counsel's objection may not have been sufficient to preserve these constitutional issues. He argues, however, that the admission of the pill bottle and statements constituted plain error and was the result of ineffective assistance of counsel. Although the State argues that plain error does not apply, we need not address that issue since we have concluded that defendant has failed to show that admission of the evidence was in error. As a result, neither plain error—assuming such review is available—nor ineffective assistance of counsel occurred.
Defendant does not dispute that the traffic stop in this case was constitutional and that Chief Jones could properly request defendant to exit the vehicle. “When there are reasonable grounds to order an occupant out of the car” during a traffic stop, the occupant “may be subjected to a limited search for weapons when the facts available to the officer justify the belief that such an action is appropriate.” State v. Collins, 38 N.C.App. 617, 619–20, 248 S.E.2d 405, 407 (1978). “In such a situation, the limited frisk is a function of self-protection” for the officer. State v. Willis, 125 N.C.App. 537, 542, 481 S.E.2d 407, 411 (1997) (internal quotation marks omitted).
This Court has previously held that the protective search of a passenger outside of a vehicle to check for weapons “was justified given the late hour, the rural surroundings, and [the officer's] vulnerable position.” State v. Adkerson, 90 N.C.App. 333, 339, 368 S.E.2d 434, 437 (1988). In this case, similarly, the traffic stop occurred at approximately 10:00 p.m. in a rural area with limited light. Chief Jones was the only officer on duty in the town, and he was out-numbered four to one. In addition, Chief Jones noticed that the driver was unusually nervous and “jittery,” while he saw what appeared to be an alcoholic beverage puddling on the floor at defendant's feet. Under Adkerson, Chief Jones was entitled to conduct a protective search on defendant outside of the vehicle.
During the frisk, defendant's repeated extreme tensing of his leg muscles when Chief Jones patted down defendant's upper thigh caused Chief Jones concern that defendant was hiding something in his groin area, but he was not sure what. Chief Jones testified that even while defendant was removing the pill bottle from his groin area, Chief Jones kept his hand in the area of defendant's abdomen because he was not sure what defendant was pulling out, and he “wanted to make sure that no matter what came out [he] had some kind of hand control at the abdomen area.”
We hold the extent of this frisk was not unconstitutional since, during the pat down, Chief Jones reasonably feared that defendant might be hiding a weapon. See Willis, 125 N.C.App. at 543, 481 S.E.2d at 411 (holding that officer's emptying defendant's pocket and finding cocaine during frisk was not unconstitutional search given that during pat-down, defendant plunged hand into pocket of jacket, and officer did not know whether there was a weapon in the pocket or something else).
Defendant, however, points to In re D.B., ––– N.C.App. ––––, 714 S.E.2d 522 (2011). Although In re D.B. held that an officer had exceeded the scope of a Terry frisk, the case did not involve questions of officer safety. Instead, the officer had already determined that the juvenile had no weapons, but after the defendant refused to respond when asked for identification, the officer reached into the defendant's pocket to pull out what felt like an identification card but was a stolen credit card. This Court held only that an officer is not permitted to search for a person's identification in order to protect himself or to seize an identification card. Id. at ––––, 714 S.E.2d at 526–27.
Since officer safety from a weapon was not at issue in In re D.B., it is not applicable to this case. We, therefore, hold that no error occurred when the trial court admitted the pill bottle and, had defendant filed a motion to suppress, that motion would have been properly denied.
Although defendant's argument regarding the statements he made to Chief Jones is not entirely clear, he appears to be arguing that defendant was subjected to a “de facto arrest” during the frisk and that the statements he made were the result of a custodial interrogation without the benefit of Miranda warnings. This issue is controlled by State v. Carrouthers, ––– N.C.App. ––––, 714 S.E.2d 460,disc. review denied,365 N.C. 361, 718 S.E.2d 392 (2011). In Carrouthers, the officer had the defendant step out of the vehicle during a traffic stop and handcuffed him while he conducted a Terry frisk during which the defendant made certain statements. Id. at ––––, 714 S.E.2d at 462. The Court concluded that “it was reasonable for [the officer] to handcuff Defendant as a permissible safety measure after the frisk gave him further reason to believe a drug crime had just occurred and where he was outnumbered by the suspects, three to one, and backup had not yet arrived.” Id. at ––––, 714 S.E.2d at 466.
The Court explained that “the two individuals in the car constituted a special circumstance that justified handcuffing the Defendant,” and the officer's “safety-related detainment did not escalate the Terry stop into an arrest.” Id. at ––––, 714 S.E.2d at 466. Based on Carrouthers, Chief Jones' use of handcuffs did not result in defendant's being de facto arrested given that there were three other individuals, defendant appeared to have engaged in an alcohol offense, the driver was very nervous, and no back up was available to Chief Jones. As defendant makes no other argument regarding his statements, we hold there was no error in admitting them and, therefore, no ineffective assistance of counsel for failing to move to suppress them.
II
Defendant next contends the trial court erred in denying defendant's trial counsel's motion to withdraw. This Court reviews the denial of a motion to withdraw for abuse of discretion. State v. Thomas, 350 N.C. 315, 329, 514 S.E.2d 486, 495 (1999). “In order to establish prejudicial error arising from the trial court's denial of a motion to withdraw, a defendant must show that he received ineffective assistance of counsel.” Id. at 328, 514 S.E.2d at 495. Thus,
“when it appears to the trial court that the original counsel is reasonably competent to present defendant's case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant, denial of defendant's request to appoint substitute counsel is entirely proper.”
State v. Anderson, 350 N.C. 152, 167, 513 S.E.2d 296, 306 (1999) (quoting State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980)).
Prior to the commencement of trial, the trial court asked defendant about a letter he sent to the Chief District Court Judge of Johnston County regarding his attorney. In pertinent part, the letter discussed defendant's feeling that he had been “in limbo” over the past year and that his lawyer was not doing all that he could. Defendant's counsel indicated he was unaware of the letter until the night before the trial, and at that point, had discussed the letter with defendant. Counsel asked the court to be released as the attorney of record.
The trial court questioned defendant regarding an earlier plea offer that the State had withdrawn and the transcript of plea signed by defendant that indicated he was satisfied with his counsel. The trial court also questioned defense counsel, who stated that he had appeared with defendant at seven court appearances, made multiple jail visits, and interviewed witnesses. At no time did defendant say he was dissatisfied with his counsel's representation. The trial court found defense counsel competent, and, in fact, noted that defendant and his counsel seemed to have a “very amicable” relationship based on their discussions and body language in the courtroom.
Moreover, defendant has failed to show that his counsel provided ineffective assistance of counsel. Given that lack of showing when combined with the trial court's inquiry and the circumstances, we cannot conclude that the court abused its discretion in denying defense counsel's motion to withdraw. See Thomas, 350 N.C. at 329, 514 S.E.2d at 495 (holding trial court did not abuse its discretion in denying defense counsel's motion to withdraw when defendant “failed to show that the experienced defense counsel's representation of him ... was anything less than professional” and where no ineffective assistance of counsel was found).
No error. Judges ROBERT C. HUNTER and BEASLEY concur.
Report per Rule 30(e).