Opinion
No. COA09-1006
Filed 4 May 2010 This case not for publication
Appeal by defendant from judgments entered 18 March 2009 by Judge Kevin M. Bridges in Alexander County Superior Court. Heard in the Court of Appeals 14 January 2010.
Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. William B. Gibson, for defendant-appellant.
Alexander County No. 07 CRS 778.
Jamey Lamont Wilkins ("defendant") appeals the trial court's denial of his oral motion to suppress statements defendant made to Captain Tommy Maddox ("Captain Maddox") of the Alexander Correctional Institution ("ACI"). We find no error.
I. BACKGROUND
On 14 January 2007, defendant was in the custody of the North Carolina Department of Correction ("DOC") in the segregation unit of ACI in Alexander County, North Carolina. The segregation unit is designed for inmates with infractions and behavior problems. Segregated inmates are housed in single cells, each with a large door that can be opened only by the control room officer. This door has a smaller "trap door" through which officers provide the inmates with food and place restraints on inmates' hands before the large door is opened. All segregated inmates are required to be dressed and in restraints before exiting their cells. In addition, two officers are required to be present when the trap door is opened to attach the hand restraints. Once officers place hand restraints on a segregated inmate, an officer in the control room opens the large door, and officers enter the cell to place leg restraints on the inmate.
At approximately 9:05 a.m. on 14 January 2007, Officers James Patterson ("Officer Patterson") and Kenyon Harrington ("Officer Harrington") (collectively "the officers") of ACI approached defendant's cell to make sure he was dressed. The officers asked defendant if he would be participating in what is referred to as "recreation time." Defendant replied in the affirmative, asked if it was raining outside, and then looked out his cell window. Officer Patterson told defendant it was not raining and then looked through the cell door window to make sure defendant's hands were empty before he opened the trap door. Seeing that defendant's hands were empty, Officer Patterson opened the trap door and stepped back to allow Officer Harrington to apply the hand restraints.
Immediately after Officer Patterson opened the trap door, defendant grabbed a Styrofoam cup and threw urine and feces at the officers through the trap door. The urine and feces hit Officer Harrington on his arm and ran down into his glove. Officer Harrington jumped out of the way, whereupon defendant threw more excrement toward Officer Patterson, hitting him on his arm, hands, and uniform. The officers then called for backup.
This is an act known as "gassing."
Sergeant Dowd Carraway ("Sergeant Carraway"), the officers' supervisor, responded to defendant's cell and observed urine and feces on the officers and noted that it "stunk." Sergeant Carraway also observed urine and feces on the floor in front of defendant's cell. Captain Maddox then arrived on the scene to attempt to place defendant in hand restraints. Captain Maddox saw the officers and noticed stains on their uniforms that had a "strong odor of feces." He also saw feces on the floor. Captain Maddox then tapped on defendant's cell door and asked him to uncover the window so they could talk to each other. Defendant uncovered the window and Captain Maddox asked, "what's going on?" Defendant became "outraged" and yelled that he was "tired of this officer messing with him[.]" Captain Maddox then asked defendant, "did you gas the officers . . . so you threw feces and urine on the officers[?]" Defendant replied, "yes, I'm tired of them messing with me."
Defendant was subsequently indicted on two counts of malicious conduct by a prisoner in violation of N.C. Gen. Stat. § 14-258.4 (2007). On 7 August 2007, the State filed a notice pursuant to N.C. Gen. Stat. § 15A-975(b) (2007) of its intention to introduce evidence of statements made by defendant. On 17 March 2009, defendant was tried in Alexander County Superior Court. Also on that day, defendant made an oral motion to suppress his statement to Captain Maddox. The trial court denied defendant's motion as untimely, and then conducted a voir dire examination of Captain Maddox. Following voir dire, the trial court again denied defendant's motion. The jury found defendant guilty of malicious conduct by a prisoner on Officer Patterson and guilty of malicious conduct by a prisoner on Officer Harrington. On each count, the trial court sentenced defendant to a minimum term of 25 months to a maximum term of 30 months in the custody of the DOC and ordered the sentences to be served consecutively. Defendant appeals.
II. TIMELINESS OF MOTION TO SUPPRESS
Defendant argues that the trial court erred in denying his oral motion to suppress. More specifically, defendant contends the trial court erred by failing to correctly interpret and apply N.C. Gen. Stat. § 15A-975(b)(1). We disagree.
"`In reviewing a trial judge's ruling on a suppression motion, we determine only whether the trial court's findings of fact are supported by competent evidence, and whether these findings of fact support the court's conclusions of law.'" State v. Brewington, 170 N.C. App. 264, 271, 612 S.E.2d 648, 653 (2005) (quoting State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282 (2000)). "The trial court's findings upon conflicting evidence are accorded great deference upon appellate review. . . . If the findings are supported by competent evidence, they are conclusive on appeal. The conclusions of law which the court draws from those findings are fully reviewable." State v. Barnard, 184 N.C. App. 25, 28, 645 S.E.2d 780, 783 (2007) (internal quotations and citations omitted).
"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 [N.C. Gen. Stat. § 15A-975] subsection (b) or (c)." N.C. Gen. Stat. § 15A-975(a) (2007). N.C. Gen. Stat. § 15A-975(b) states, in pertinent part:
(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[.]
N.C. Gen. Stat. § 15A-975(b)(1).
As a general rule, motions to suppress must be made before trial. A defendant may move to suppress evidence at trial only if he demonstrates that he did not have a reasonable opportunity to make the motion before trial; or that the State did not give him sufficient advance notice (twenty working days) of its intention to use certain types of evidence; or that additional facts have been discovered after a pretrial determination and denial of the motion which could not have been discovered with reasonable diligence before determination of the motion.
State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980) (internal citations omitted); State v. Jones, 157 N.C. App. 110, 113-14, 577 S.E.2d 676, 679 (2003). "The defendant has the burden of showing that he has complied with the procedural requirements of [N.C. Gen. Stat. § 15A-971 et seq.]." State v. Maccia, 311 N.C. 222, 227, 316 S.E.2d 241, 244 (1984).
In the instant case, on 7 August 2007, the State filed a Notice of Intention to Introduce Certain Evidence at Trial ("Notice of Intention") pursuant to N.C. Gen. Stat. § 15A-975(b). The Notice of Intention was filed "to give the defendant and the Court notice of the State's intention to introduce . . . [e]vidence of a statement or statements made by the defendant." Defendant did not file any written motion to suppress his statement to Captain Maddox, but at trial, defendant made an oral motion to suppress the statement. The trial court then removed the jury and conducted a colloquy with defense counsel and counsel for the State. Defense counsel conceded that approximately three weeks before trial, he received defendant's statements to Captain Maddox as part of discovery. Additionally, the trial court made the following inquiries of defense counsel:
Q [The Trial Court]: Well, let me just ask you this. Do you in any way refute that you did have this new statement of your client more than 10 working days before the start of this trial?
A [Defense Counsel]: No, your Honor, I got it from the prison.
Q: So you concede that fact?
A: Yes.
Following this, the trial court orally entered its findings of fact and conclusion of law on the record as follows:
Court's also going to find that the Counsel for the Defendant in addition to the notice of the intent to use any statements made by the Defendant, received an additional statement or received a statement more than 10 working days before the start of this trial. That the Defendant — Defendant's Counsel did not file any written Motion to Suppress any such statement or attach any affidavit as required by statute. And I'm referring to [N.C. Gen. Stat. §§ ] 15A-975 and 15A-976. Court's going to find that statute clearly states Defendant may move to suppress evidence only prior to trial unless the Defendant did not have reasonable opportunity to make the motion before trial. That's [N.C. Gen. Stat. § ] 15A-975(a).
The Court's going to find that based upon these facts as stipulated by the Prosecutor and the Defense Attorney, that the Defense Attorney did have a reasonable opportunity to make that motion before trial. Court's going to conclude that the oral Motion to Suppress the Defendant's statement was not timely made. Court will order that the motion — the oral Motion to Suppress is denied.
The trial court then conducted a voir dire of Captain Maddox and thereupon reaffirmed its denial of defendant's oral motion to suppress. We hold that the trial court's oral findings of fact were supported by competent evidence and we affirm its conclusion of law.
Defendant cites State v. Roper, 328 N.C. 337, 402 S.E.2d 600 (1991), in support of his argument that his oral motion to suppress was timely. In Roper, the defendant argued that the search of his home by law enforcement officers violated his right to be free from unreasonable searches and seizures, and that the trial court improperly admitted evidence obtained from that search. Id. at 360, 402 S.E.2d at 613. Our Supreme Court stated that since the State "did not give the defendant notice prior to trial that it would offer evidence from the . . . search . . .," then the defendant's initial motion to suppress which he made at trial was timely. Id. at 361, 402 S.E.2d at 614; see also State v. Fisher, 321 N.C. 19, 27, 361 S.E.2d 551, 555 (1987) (stating that although the defendant had notice that the State had certain evidence against him, the defendant's motion to suppress the evidence, made at trial, was timely because the defendant "had never received any notice that the State intended to use the evidence. . . .") (emphases added). In the instant case, since the State notified defendant more than seventeen months before trial that defendant's statements would be introduced against him at trial, defendant's motion to suppress made at trial was not timely.
Defendant's counsel stated he had "been monitoring what subpoenas ha[d] been going out, and . . . didn't see any subpoena for Mr. Maddox[.]" Defendant's counsel stated he believed the State had "overlooked" defendant's statements, and he "didn't want to alert" the State by filing a motion to suppress because he knew the statements "would be prejudicial" to defendant. Defense counsel likened this to "kick[ing] a sleeping dog[.]" However, the trial strategies of defendant's counsel are insufficient to trigger the exceptions to the general rule that a motion to suppress should be filed before trial. See Jones, 157 N.C. App. at 114, 577 S.E.2d at 679 ("A miscalculation of the strength of the State's case is not a sufficient excuse for failure to make a motion to suppress prior to trial.").
Defendant argues that the State's notice of 7 March 2007 was insufficient under N.C. Gen. Stat. § 15A-975(b)(1) because it was "generic." In analyzing a statute, "we use accepted principles of statutory construction by applying the plain and definite meaning of the words therein, as the language of the statute is clear and unambiguous." State v. Bryant, 361 N.C. 100, 102, 637 S.E.2d 532, 534 (2006) (citations omitted). The plain language of N.C. Gen.
Stat. § 15A-975 does not require the State to specify the substance of a defendant's statement which it wishes to introduce. Since defendant had a reasonable opportunity to file a motion to suppress, he did not meet his burden of showing he complied with N.C. Gen. Stat. § 15A-975(b)(1). Maccia, 311 N.C. at 227, 316 S.E.2d at 244. Defendant's assignment of error is overruled.
III. CUSTODIAL INTERROGATION
Defendant argues that the trial court erred in denying his motion to suppress because he was in custody at the time of his statements to Captain Maddox and had not received his Miranda warnings. We disagree.
"Chapter 15A, Article 53, of the General Statutes sets forth the exclusive method for challenging evidence on the ground that its exclusion is constitutionally required." Maccia, 311 N.C. at 227, 316 S.E.2d at 244; see also State v. Conard, 54 N.C. App. 243, 244, 282 S.E.2d 501, 503 (1981) ("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 defendant has the burden of showing that he has complied with the procedural requirements of Article 53. In Superior Court a defendant may move to suppress evidence only prior to trial unless he falls within certain exceptions." Maccia, 311 N.C. at 227, 316 S.E.2d at 244 (internal quotations, citations, and italics omitted). "When no exception to making the motion to suppress before trial applies, failure to make the pretrial motion to suppress waives any right to contest the admissibility of the evidence at trial on constitutional grounds." State v. Detter, 298 N.C. 604, 616, 260 S.E.2d 567, 577 (1979) (citations omitted); Conard, 54 N.C. App. at 245, 282 S.E.2d at 503. The United States Supreme Court's holding in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), "govern[ing] the admissibility of statements made during custodial interrogation in both state and federal courts" was "a constitutional decision. . . ." Dickerson v. United States, 530 U.S. 428, 432, 147 L. Ed. 2d 405, 411-12, 120 S. Ct. 2326, 2329 (2000).
Since defendant did not meet his burden of showing that he complied with the procedural requirements of N.C. Gen. Stat. § 15A-975(b)(1) and no exception to the general rule applies, we hold that defendant waived his right to contest the admissibility of his statements on constitutional grounds. Maccia, 311 N.C. at 228, 316 S.E.2d at 244. Defendant's assignment of error is dismissed.
IV. CONCLUSION
Defendant's remaining assignment of error not argued in his brief is abandoned. N.C. R. App. P. 28(b)(6) (2009). Defendant received a fair trial free from error.
No error.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).