Opinion
No. 07-1196.
Filed 6 May 2008.
Wake County Nos. 06CRS113535-36.
Appeal by defendant from judgment entered 24 May 2007 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 28 April 2008.
Attorney General Roy Cooper, Assistant Attorney General John F. Oates, Jr., attorney for the State. M. Alexander Charns, attorney for defendant-appellant.
Where defendant made no motion to suppress evidence, either pretrial or during the trial, the trial court was not required to enter an order containing findings of fact and conclusions of law in support of its ruling overruling defendant's objection to testimony by an officer. When defendant fails to show prejudice arising out of his asserted ineffective assistance of counsel claim based upon counsel's failure to request complete recordation of the proceedings, this argument is without merit.
On 5 February 2007, defendant was indicted for trafficking in heroin by possession, trafficking in heroin by transportation and conspiracy to traffic in heroin. These charges arose from a controlled delivery of heroin arranged by police in cooperation with an informant. Defendant was arrested as he and another person attempted to make the arranged delivery. Upon his initial detention, an officer conducted a brief frisk of defendant to determine if he possessed any weapons. A subsequent and more thorough search of defendant by a second officer revealed a bag containing approximately 29.4 grams of heroin. On 23 May 2007, a jury found defendant guilty of trafficking in heroin by possession and by transportation, but the State voluntarily dismissed the conspiracy charge prior to the return of the jury's verdict. Defendant appeals.
In his first argument, defendant contends that the trial court failed to make findings of fact and conclusions of law regarding whether the search and seizure of defendant following his arrest was constitutional. We disagree.
When a defendant seeks to suppress evidence in superior court, such motion must be in writing, supported by an affidavit. N.C. Gen. Stat. § 15A-977 (2007). The timing of the filing of such motion is governed by N.C. Gen. Stat. 15A-976. Under the provisions of N.C. Gen. Stat. § 15A-977(a), a motion to suppress must "state the grounds upon which it is made." Further, N.C. Gen. Stat. § 15A-977(c)(1) provides that the trial court can deny a motion to suppress where the motion "does not allege a legal basis for the motion." Moreover, the North Carolina Supreme Court has held that "[a] motion to suppress made at trial, whether oral or written, should state the legal ground upon which it is made." State v. Roper, 328 N.C. 337, 361, 402 S.E.2d 600, 614 (1991) (holding that a general objection and motion to strike without any legal or factual basis for the objection was insufficient to warrant a motion to suppress); see also State v. Payne, 312 N.C. 647, 660, 325 S.E.2d 205, 214 (1985) (holding that a general objection which fails to allege a specific legal or factual basis for the contention that evidence was obtained in violation of defendant's constitutional rights may be summarily denied).
In this case, the State presented the testimony of the officer who conducted the initial frisk of defendant. As this officer began to testify about how he detained defendant, defense counsel objected as follows:
[DEFENSE COUNSEL]: Your Honor, I am going to object at this point. I'd like to be heard.
[TRIAL COURT SENDS THE JURY OUT]
[DEFENSE COUNSEL]: Your Honor, I would ask the Court permission to voir dire this particular witness as to the probable cause to place my client under arrest.
THE COURT: This is the sort of thing that should have happened yesterday, not in the middle of the first witness. But you go right ahead.
[DEFENSE COUNSEL]: Well, your Honor, can I just explain that? Looking from the discovery — I think Mr. Mangum would agree with me — that it is difficult to tell who actually put him under arrest, and it was only this morning that I found out that this particular officer did do that.
THE COURT: Go ahead.
[DEFENSE COUNSEL]: Thank you. Defense counsel then proceeded to question the officer regarding the circumstances surrounding the officer's detention and initial frisk of defendant. After this questioning, the following exchange occurred:
THE COURT: He has already said that he did not go in his pockets because that's not his job. His job is to make sure he is not carrying [an] Uzi or other kind of firearm that would put anybody in danger and he basically stopped him until the detectives can get there. They were watching this crowd.
Anything further?
[DEFENSE COUNSEL]: Nothing.
[VOIR DIRE EXAMINATION BY THE STATE.]
THE COURT: Objection overruled. You can bring the jury out.
This colloquy reveals that defense counsel merely made a request to conduct a voir dire examination of the witness to gain more information regarding how the search was conducted. Following the questioning of the witness by both defense counsel and the State, defense counsel made no motion to suppress or to otherwise assert that the search of defendant was improper. As defendant failed to make a proper motion, defendant's contention that the trial court failed to make proper findings and conclusions is without merit. Accordingly, this assignment of error is without merit.
In his second argument, defendant contends that he received ineffective assistance of counsel because his trial counsel did not request recordation of jury selection and bench conferences. To demonstrate ineffective assistance of counsel, a defendant must show that his counsel's conduct fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). Such a showing requires defendant to satisfy the two-prong test announced by the United States Supreme Court in Strickland and adopted by our Supreme Court in Braswell: 1) that counsel's performance was deficient; and 2) that the deficient performance prejudiced the defense. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985).
As an initial matter, defendant has conceded in his brief that "[h]e cannot at this time show prejudice from the failure to record the entire trial." This concession precludes a finding of ineffective assistance of counsel under the second prong of Strickland. Further, our Supreme Court has specifically held that the failure to request recordation of jury selection and bench conferences does not constitute ineffective assistance of counsel where defendant fails to make specific allegations of error regarding these portions of the proceedings. State v. Hardison, 326 N.C. 646, 661-62, 392 S.E.2d 364, 372-73 (1990). Because defendant has failed to specify what errors occurred and what prejudice he suffered as a result, this assignment is overruled.
Defendant has failed to argue his remaining assignments of error, and they are deemed abandoned. N.C. R. App. P. 28(b)(6) (2007).
No error.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).