Opinion
No. COA10-1374
Filed 16 August 2011 This case not for publication
Appeal by defendant from judgment entered 11 May 2010 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 25 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Brandon L. Truman, for the State. Glenn Gerding for defendant-appellant.
Lenoir County No. 99 CRS 8290.
Defendant Markus Antoine Black appeals from his conviction of possession of a firearm by a felon. Defendant argues that the trial court erred in denying his motion to suppress. Our statutes require that an affidavit be filed in support of a motion to suppress. Here, the only affidavit filed had defendant's name on it, but it expressly noted that defendant had refused to sign the affidavit, and this refusal had been notarized. In addition, at the hearing on the motion to suppress, defendant informed the trial court that he refused to sign the affidavit because he could not trust that the affidavit was not a trick by his attorney. Since defendant expressly disavowed the affidavit, the trial court did not abuse its discretion in summarily denying the motion to suppress.
Facts
The State's evidence tended to show the following facts. On 12 August 1999, Officer Scott Thompson of the Kinston Police Department was on patrol when he saw defendant sitting in the passenger seat of a vehicle stopped at a gas station in Kinston, North Carolina. The driver of the vehicle, Chris Williams, was inside the Tony's Friendly Mart convenience store at the time.
Officer Thompson recognized defendant and knew that defendant had been placed on a list banning him from Kinston Housing Authority property, and he knew that defendant still needed to be served with the ban letter. Officer Thompson notified Kinston public housing officer Mark Williams, who had been attempting to locate defendant to serve him with the ban letter, that defendant was at Tony's Friendly Mart and could be served there. Officer Williams told Officer Thompson that he was on his way.
Officer Thompson then approached the passenger window of the vehicle and told defendant that he needed to be served with the ban letter. He informed defendant that he was not under arrest and attempted to inform defendant about the ban letter process. Defendant would not look at Officer Thompson, kept moving around, and started breathing more heavily. Defendant also kept looking around, and he called for Mr. Williams, the driver.
Officer Thompson asked defendant to put his hands on the dash board "for officer safety." Defendant complied very briefly but then put his hands back down and turned in the seat in an effort to locate Mr. Williams. Defendant also reached toward his midsection a number of times, at which point Officer Thompson repeated his request that defendant place his hands on the dash board. Based on his training and his observation of defendant's behavior, Officer Thompson believed defendant might be nervous because he was hiding something. He also knew that the waistband area, where defendant was reaching, was a common area to hide weapons, drugs, and contraband.
Another officer, Officer B. Hedgepath, arrived at the scene. Officer Hedgepath asked Mr. Williams, the vehicle's driver, for consent to search the vehicle, and Mr. Williams gave his consent. Officer Thompson then asked defendant to exit the vehicle and to go to the back of the vehicle so that the officers could pat him down for their safety. It was at this point that defendant resisted and ran across the parking lot. Officers Thompson and Hedgepath chased after him, and within a few steps grabbed hold of him and all three "went to the pavement." After a short struggle, during which defendant was sprayed with OC spray, Officer Thompson handcuffed defendant. After defendant's arrest, a third officer searched defendant and found a handgun in his waistband.
On 24 September 2001, defendant was indicted for possession of a firearm by a felon. On 26 September 2001, the State filed a Notice of Intention to Introduce Evidence at Trial, including the evidence of defendant's prior felony conviction and evidence obtained as a result of the search on 12 August 1999. This notice was served on defendant's attorney, Nick Harvey. Subsequently, on 4 February 2002, the State filed a dismissal with leave because the order for arrest had been returned unserved.
The transcript indicates that defendant was also charged with "carrying a concealed weapon and resisting, obstructing and delaying." The record does not contain copies of the indictments for those charges, and they are not at issue in this appeal.
At some point, the State reinstated the charge. On 26 January 2010, defendant's attorney — now Christopher A. Rogerson — filed a motion to suppress the evidence obtained from defendant in the 12 August 1999 search. Along with the motion, Mr. Rogerson filed a memorandum of law supporting the motion and a notarized affidavit. The affidavit had defendant's name printed on the bottom, but it was unsigned, and the words "(refused to sign on 1-20-10)" were handwritten above the signature line.
In a 25 January 2010 hearing before Judge Arnold O. Jones, II on the motion to suppress, Mr. Rogerson explained to the court the difficulty he had experienced in communicating with defendant. Defendant indicated that he had refused to sign the affidavit because he did not trust Mr. Rogerson. Judge Jones ultimately denied the motion to suppress because it "does not meet the requirements of the state law." Judge Jones then allowed Mr. Rogerson to withdraw from representing defendant and appointed a new attorney, Patrick Broadway, to represent defendant.
Defendant's case went to trial in May 2010. At this stage, James Perry, and not Patrick Broadway, appeared as defendant's counsel. Mr. Perry filed a motion to suppress with a supporting affidavit. These documents were identical to those filed previously by Mr. Rogerson, with the exception that this new affidavit was signed by defendant, although it was not notarized but rather "[w]itnessed by" Mr. Perry and someone named Josiah Corrigan.
Judge Paul L. Jones presided over defendant's trial. When Mr. Perry indicated he would like to be heard on the motion to suppress, Judge Jones denied the motion, explaining, "[T]he problem with that is once a Superior Court judge makes a ruling there's a principle in the law that one Superior Court judge cannot overrule another Superior Court judge. Therefore, Judge [Arnold] Jones having made that ruling even though the circumstances might be somewhat different, I can't come back and review that matter." Judge Paul Jones did, however, allow Mr. Perry to set out for the record the basis for his motion to suppress. After the close of the evidence, Judge Paul Jones concluded that had the court considered the merits of the motion to suppress, he would have denied the motion.
The jury found defendant guilty of possession of a firearm by a felon. The trial court sentenced defendant to a presumptive-range term of 16 to 20 months imprisonment. Defendant timely appealed to this Court.
I
Defendant contends that Judge Arnold Jones erred in denying his motion to suppress. Defendant concedes that Judge Paul Jones had no authority to disturb the ruling by Judge Arnold Jones. Because defendant did not object at trial to the admission of the evidence that was the subject of his motion to suppress, he failed to preserve this issue for appeal. See State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000) (holding pretrial motion to suppress is not sufficient to preserve for appeal question of admissibility of evidence where defendant does not also object at time evidence is offered at trial), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1379, 1380 (2001). Defendant, therefore, asks that this Court review the issue for plain error.
N.C. Gen. Stat. § 15A-977(a) (2009) provides that a motion to suppress "must be accompanied by an affidavit containing facts supporting the motion." The affidavit "may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated." Id. N.C. Gen. Stat. § 15A-977(c)(2) provides that the trial court may summarily deny a motion to suppress where "[t]he affidavit does not as a matter of law support the ground alleged." "The decision to deny summarily a motion that is not accompanied by an affidavit is vested in the discretion of the trial court." State v. Langdon, 94 N.C. App. 354, 356, 380 S.E.2d 388, 390 (1989).
Defendant correctly points out that although N.C. Gen. Stat. § 15A-977(a) requires a supporting affidavit, it does not require that the defendant actually sign the affidavit. In State v. Higgins, 266 N.C. 589, 593, 146 S.E.2d 681, 684 (1966), our Supreme Court explained that, as a general matter, in the absence of a statute or rule to the contrary, a signature is not essential where the identity of the affiant is sufficiently shown, such as where the affidavit begins with his name. In Higgins, the name of the affiant appeared twice in the pertinent affidavit, and beneath her typewritten name appeared the words "`Sworn to and subscribed before me this 12th day of September 1965. (s) J. L. SLOOP, Deputy Clerk, Police Court.'" Id. The Court held that "the signature of affiant at the bottom of the affidavit is not necessary to the validity of the affidavit in the instant case, though it is the better practice that such an affidavit be signed by the affiant." Id.
The affidavit in this case is materially distinguishable from the affidavit in Higgins. Here, instead of merely leaving a blank signature line, someone wrote where the signature should have been: "(refused to sign on 1-20-10[.])" As a result, the words "Sworn to and subscribed before me this 20 day of January, 2010," the notary's signature, and the notary's stamp verified not that defendant acknowledged or swore to the contents of the affidavit, but that he affirmatively refused to sign the affidavit.
The colloquy between defendant and Judge Arnold Jones at the hearing on the motion to suppress further shows that defendant had not sworn to the contents of the affidavit, despite the fact that it bore his typewritten name. When Judge Arnold Jones asked defendant about the note on the affidavit indicating defendant had refused to sign, defendant responded, "Sir, I'm going to say this like — like how do I know that's not another trick. This man has lied to me on numerous of cases [sic]. He tells me one thing, I go back through my own research, read up on the law, it tells me something different. I can't trust this man."
The effect of defendant's disavowal of the affidavit was to render it invalid. Since no other affidavit was filed in support of the motion to suppress, the requirement of N.C. Gen. Stat. § 15A-977(a) was not fulfilled. "Because the motion as filed did not comply with the requirements of G.S. 15A-977, the motion was subject to being summarily denied. We cannot say the trial court abused its discretion in denying defendant's initial motion to suppress." Langdon, 94 N.C. App. at 356, 380 S.E.2d at 390 (internal citation omitted) (holding defendant's first motion to suppress could be summarily denied due to fact that it was unverified and not accompanied by affidavit). Because we reach this decision, we need not address defendant's additional argument regarding the timeliness of the motion to suppress.
II
Defendant also argues that he was denied effective assistance of counsel. "Attorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel. An [ineffective assistance of counsel] claim must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance." State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001) (internal citation omitted), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002).
Ineffective assistance of counsel claims are usually raised in post-conviction proceedings and not on direct appeal. Such claims may, however, be raised on direct appeal when the cold record reveals that no further factual development is necessary to resolve the issue. Id. at 166, 557 S.E.2d at 524. If the record reveals that factual issues must be developed, the proper course is for the appellate court to dismiss those issues without prejudice to the defendant's right to raise an ineffective assistance of counsel claim in a later motion for appropriate relief. State v. Long, 354 N.C. 534, 539-40, 557 S.E.2d 89, 93 (2001).
Defendant points to four instances of conduct by his various lawyers that he contends show ineffective assistance of counsel: (1) Mr. Harvey, defendant's original attorney, may have failed to timely file a motion to suppress after receiving notice of the State's intent to use the evidence at trial; (2) Mr. Rogerson should have signed an affidavit in support of the motion to suppress upon information and belief; (3) Mr. Rogerson and Mr. Perry failed to raise certain grounds, which defendant raises for the first time on appeal, for the motion to suppress; and (4) Mr. Perry failed to object to the admission of the gun at trial.
With respect to the first three bases alleged by defendant, our review of the record indicates that additional factual development is necessary before a proper review of defendant's ineffective assistance of counsel claim may be undertaken. First, the record contains little information regarding Mr. Harvey's involvement in the case and no information about his trial strategy or his relationship with defendant. Second, there may have been a valid reason that Mr. Rogerson chose not to sign an affidavit, but the record does not speak to that issue. Third, as to other theories for the motion to suppress, we would need to know why counsel did not argue them below, but the record is not developed enough for us to deduce counsel's rationale. Accordingly, we decline to address the merits of these bases for defendant's ineffective assistance of counsel claim without prejudice to defendant's right to raise these issues in a subsequent motion for appropriate relief.
However, with respect to the fourth challenge — that Mr. Perry should have objected to the admission of the gun at trial — we hold that the cold record reveals that Mr. Perry's failure to do so was not ineffective assistance of counsel. The right to object at that point had been waived due to defendant's prior failure to follow the requirements of N.C. Gen. Stat. § 15A-977(a) in moving to suppress the evidence. See Langdon, 94 N.C. App. at 356, 380 S.E.2d at 389 (explaining that General Assembly may impose "reasonable prerequisites on motions to suppress evidence, and the failure to meet those requirements constitutes a waiver of the right to challenge the admission of the evidence at trial on constitutional grounds"). See also State v. Detter, 298 N.C. 604, 616, 260 S.E.2d 567, 577 (1979) ("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.").
No error.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).