Opinion
No. COA15–447.
01-19-2016
STATE of North Carolina v. Korpo Anna SUMO.
Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State. Andrew L. Farris for Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State.
Andrew L. Farris for Defendant.
Opinion
Appeal by Defendant from judgment entered 8 August 2014 by Judge Robert C. Ervin in Superior Court, Mecklenburg County. Heard in the Court of Appeals 19 October 2015. Mecklenburg County, Nos. 13 CRS 204343–44.
McGEE, Chief Judge.
Korpo Anna Sumo (“Defendant”) was driving her boyfriend, Wilbert Lane (“Lane”), in an Infiniti automobile (“the Infiniti”) on the evening of 29 January 2013. According to Defendant, Lane asked her to pull over and let him out so he could take a walk. Defendant testified that Lane sometimes did this when he was frustrated, so she pulled into a shopping center and let Lane out in the parking lot of an Applebee's restaurant. Defendant testified that, while she sat in the Infiniti waiting for Lane to return, she saw him approach another automobile, then start to run away from that other automobile. Defendant then drove toward Lane and stopped to let Lane get into the front passenger seat. Defendant then drove to her mother's apartment (“the apartment”), where she sometimes lived. Defendant testified that after Lane got into the Infiniti: “I was in shock, so I just drove the car.” Defendant said that once she reached her mother's apartment she felt “scared” because she “didn't know what was going on” and she “was just in shock.” Defendant testified that after she and Lane entered the apartment, Lane informed her that he had robbed someone.
Frances Perez–Wilhite (“Perez”) had just finished shopping at approximately 7:15 p.m. on 29 January 2013 when she was approached by Lane as she was getting into her car, which was parked near the Applebee's parking lot. According to Perez, Lane used a handgun to threaten her and struck her repeatedly in the face with his fist. Lane then ran off with Perez's purse. Perez asked onlookers to call 911. Perez observed Lane run towards the Applebee's parking lot, so she followed him in her car. She saw Lane get into the passenger side of “a red, two-door small sports car.” This red sports car was later identified as the Infiniti. Perez could not see the driver, but she followed the Infiniti as it drove away “in a quick fashion.” After following the Infiniti for a while, Perez was able to get its license plate number. At that point, Perez turned around and returned to the site of the robbery and assault, where she gave police the license plate number and a description of the Infiniti.
Based upon the license plate number provided by Perez, police went to the apartment complex where Defendant's mother lived, because Defendant's mother was the registered owner of the Infiniti. The Infiniti was located in the parking lot of that apartment complex, and police took defensive positions around the apartment. A short time later, the door of the apartment opened and Defendant exited the apartment. Defendant was commanded to get on the ground, was placed in handcuffs, and then escorted to the back seat of a police cruiser. Defendant was released from the police cruiser and the handcuffs were removed after approximately twenty minutes. Defendant remained on the scene for several hours, and made statements to police that she was the owner of the Infiniti, and that she had the keys to the Infiniti in her possession. At the request of the police, Defendant called Lane to try to convince him to surrender, and she called her mother to seek permission for police to break down the apartment door. Lane finally surrendered at approximately 9:30 p.m. on 29 January 2013. Perez's purse was found in a search of the apartment.
Defendant remained at the scene until she agreed to be driven by police to the Law Enforcement Center (“LEC”). When questioned at the LEC, Defendant admitted that she drove Lane to and from the scene of the robbery and assault. It is disputed whether Defendant remained in police custody, or was free to leave, between the time she was released from the back seat of the police cruiser and handcuffs were removed and when she was formally arrested at approximately 2:00 a.m. on 30 January 2013.
Defendant was indicted on 18 February 2013 for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. A superseding indictment was executed on 12 November 2013 for conspiracy to commit robbery with a dangerous weapon and accessory after the fact to felony robbery with a dangerous weapon.
Defendant moved to suppress her statements to police by motion filed 6 January 2014. Defendant's argument was that she was in police custody when she was interrogated by the police, and she had not been given her Miranda rights. Defendant's motion to suppress was denied by order entered 8 May 2014. Defendant again, by motion filed 16 May 2014, moved to suppress the statements she had made to police. This time Defendant argued that her Fourth Amendment rights had been violated because she had been seized and continued to be held under seizure absent any “arrest warrant, consent of [D]efendant, reasonable suspicion and probable cause for arrest.” This motion was also denied at a hearing held 4 August 2014, and by written order entered 15 September 2014. Defendant was convicted of accessory after the fact of common law robbery on 8 August 2014. Defendant appeals.
Defendant makes several arguments that the trial court committed prejudicial error by failing to suppress statements made by Defendant. We disagree.
Defendant first argues the trial court erred in denying her motions to suppress her statements to police in the parking lot that she was the owner of the Infiniti, that she had the keys to the Infiniti in her possession, and her later statements at the LEC that she drove Lane to the Applebee's parking lot before the robbery and assault, then drove Lane from the parking lot to her mother's apartment after Lane robbed and assaulted Perez. Defendant argues failure to suppress these statements constituted violations of her rights under the Fourth and Fifth Amendments to the United States Constitution. However, as discussed below, because Defendant failed to preserve these arguments at trial, we do not address them.
While at the LEC, Defendant was recorded as she was interviewed by the police about the events of 29 January 2013. In this videotaped interview, Defendant stated that she was the driver of the Infiniti, and that she drove Lane to the parking lot where the robbery and assault occurred, and then drove Lane to her mother's apartment after Lane had committed the robbery and assault. Before trial, Defendant moved to suppress the video evidence of her statements, and she then objected to the admission at trial of the video recording of the statement. However, because Defendant testified at trial consistently with the recorded statement she gave at the LEC, Defendant has waived the right to contest the admission of this evidence.
A motion to suppress is a type of motion in limine:
Our Supreme Court's opinion in Tate, 300 N.C. at 182, 265 S.E.2d at 225, classified motions to suppress as a type of motion in limine. “Article 53 of Chapter 15A deals with a specific type of a motion in limine and that is the motion in limine to suppress evidence.... The fact that it is a motion to suppress denotes the type of motion that has been made. The fact that it is also a motion in limine denotes the timing of the motion regardless of its type.” And, “[a] ruling on a motion in limine is a preliminary or interlocutory decision which the trial court can change if circumstances develop which make it necessary.” State v. Lamb, 321 N.C. 633, 649, 365 S.E.2d 600, 608 (1988); see also State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam) (reversing this Court's opinion to the contrary: “Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of the evidence.”) (internal quotations omitted). Thus, any ruling on a motion to suppress prior to trial is not final and the trial court may reverse its decision.
State v. McNeill, 170 N.C.App. 574, 579, 613 S.E.2d 43, 46 (2005) (citations omitted). “The law in this State is now well settled that ‘a trial court's evidentiary ruling on a pretrial motion [to suppress] is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial.’ “ State v. Hargett, –––N.C.App. ––––, ––––, 772 S.E.2d 115, 119, appeal dismissed, review and cert. denied, ––– N.C. ––––, 776 S.E.2d 191 (2015).
In this case, Defendant did make a pre-trial motion to suppress the video of the interview, and did object at trial to admission of the video. However, Defendant then went on to testify, on both direct and cross-examination, that she was the driver of the Infiniti, and that she drove Lane to the parking lot where the robbery and assault occurred, saw Lane running away from another automobile, drove towards Lane until Lane saw her, “stopped mid stride and jumped in[,]” then “told [her] to drive.” Defendant then drove Lane to her mother's apartment after Lane had committed the robbery and assault. Having done so, Defendant has lost her right to contest the admission of this evidence. State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (citation omitted) (“This Court frequently has held that when, as here, evidence is admitted over objection, but the same or similar evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.”). Defendant's arguments are without merit.
We note that a defendant may change her trial strategy based upon the grant or denial of a motion to suppress. The denial of a motion to suppress might lead a defendant to testify when she may not have otherwise done so. This could lead to a situation where a defendant has to “object” to her own testimony in order to preserve the denial of a motion to suppress for appellate review. We do not address that issue here, as Defendant has not argued in this appeal that she would have exercised her right not to testify had her motion to suppress been granted.
NO ERROR.
Judges ELMORE and INMAN concur.
Report per Rule 30(e).