Opinion
No. COA11–1524.
2012-05-15
STATE of North Carolina v. Lisa Day KRAMER, Defendant.
Roy Cooper, Attorney General, by J. Allen Jernigan, Special Deputy Attorney General, for the State. Brook, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
Appeal by defendant from judgments entered 3 August 2011 by Judge Bradley B. Letts in Haywood County Superior Court. Heard in the Court of Appeals 23 April 2012. Roy Cooper, Attorney General, by J. Allen Jernigan, Special Deputy Attorney General, for the State. Brook, Payne & Meece, P.A., by C. Scott Holmes, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Lisa Day Kramer appeals from judgments entered upon jury verdicts finding her guilty of trafficking opium by possession and transportation of at least fourteen grams but less than twenty-eight grams, possession of cocaine, possession of marijuana up to one-half ounce, and possession of drug paraphernalia. We find no error in her trial.
While patrolling on 27 June 2009, Trooper Henderson of the North Carolina State Highway Patrol spotted a silver Ford Explorer weaving in its lane of travel on Highway 209 in Haywood County. Trooper Henderson noticed that the female driver, later determined to be defendant, was not wearing a seatbelt, and observed defendant's vehicle make a left turn without signaling, passing into the lane of oncoming traffic before returning to the correct lane of travel. Trooper Henderson ran defendant's license plate through the Division of Motor Vehicles database on his computer and discovered that defendant's driver license was expired. He activated his blue lights and stopped defendant at approximately 9:06 p.m.
As he approached the vehicle, Trooper Henderson observed defendant making “erratic” movements, including a throwing motion toward the passenger's window, which was rolled down. Trooper Henderson observed a male passenger, Joseph Searcy Justice, in the passenger seat. Trooper Henderson explained why he stopped defendant and requested her license and registration, which she produced. Defendant appeared “very nervous” and “rambled” as she spoke with Trooper Henderson. Trooper Henderson returned to his vehicle and prepared various citations for defendant, including failing to properly fasten seatbelt, displaying a driver license known to be cancelled, driving a vehicle without a license, and driving left of center.
Meanwhile, Haywood County Sheriff's Deputy Beasley arrived on the scene and approached defendant's vehicle. As he approached the driver's window, defendant had her back turned to him and appeared to be “rummaging” through her purse. When defendant turned around and noticed Deputy Beasley, she appeared startled. Deputy Beasley noticed a green and white package of cigarettes in her hand.
Deputy Beasley met Trooper Henderson at the rear of defendant's vehicle, where they discussed what they perceived to be suspicious behavior by defendant. Trooper Henderson again approached defendant's window and asked her to step out of her vehicle so that he could give her the citations. He explained the citations to defendant and returned her registration, but retained the expired driver license as evidence. Based on the suspicious activity he and Deputy Beasley witnessed, Trooper Henderson then asked defendant for consent to search her vehicle, which defendant gave. Just before commencing the search, Trooper Henderson again asked for permission to search, which defendant again granted.
Deputy Beasley searched the front driver's side of the vehicle while Trooper Henderson searched the front passenger's side. Deputy Beasley did not find any contraband; however, Trooper Henderson found a plastic bag containing a green substance and a green washcloth concealing a glass stem pipe. Upon inspection, the glass pipe contained a residue and metal consistent with a pipe used to smoke crack cocaine or methamphetamine.
At this time Lieutenant Shuler and Deputy Smathers arrived to assist in the search. Deputy Smathers surveyed the area around the vehicle's perimeter and located a green and white cigarette pack lying in some flowers about five feet from the passenger's window of defendant's vehicle. The cigarette pack, which matched the one Deputy Beasley had observed in defendant's hands, contained two small plastic bags holding a white crystal substance. Deputy Beasley used a field test kit and determined that the white powder was a controlled substance. Lieutenant Shuler searched the back of the vehicle and came across a pill bottle with no label containing 35 white pills with green spots on them hidden in the spare tire compartment.
Subsequently, the State Bureau of Investigation (“SBI”) laboratory tested the white substance found in the plastic bags and determined it was 0.8 grams of Schedule II cocaine base. A SBI analyst also tested the white pills with green spots using a gas chromatograph mass spectrometer and concluded the pills were dihydrocodeinone, a Schedule III controlled substance. The same analyst tested the pills a second time and confirmed that all the pills contained an opiate. She concluded in her report that the pills were 26.3 grams of dihydrocodeinone.
During the investigation, defendant admitted to Deputy Beasley that the pills were hers, but insisted that she had a prescription for them at home. Defendant's passenger, Mr. Justice, denied ownership of all of the controlled substances and paraphernalia. He stated that he saw defendant purchase the pills from another person at her residence earlier in the day on 27 June 2009. He also confirmed that defendant threw the cigarette pack out of the passenger's window upon being stopped by the police.
Defendant was indicted by a grand jury on the following charges: possession of cocaine, possession of marijuana up to one-half ounce, possession of drug paraphernalia, trafficking in opium or heroin by possession and by transportation, and maintaining a vehicle for controlled substances. On 20 December 2010, the State filed a “Notice of Intention to Introduce Evidence at Trial” which included “evidence of a statement or statements made by the defendant” and “evidence obtained by virtue of a search without a search warrant.” On 4 March 2011, defense counsel filed motions to suppress based on the warrantless search and an alleged Miranda violation. The trial court dismissed the motions to suppress on 12 August 2011 for failure to be filed within ten days of receiving notice from the State, as required by N.C.G.S. § 15A–976(b).
The matter was tried before a jury at the 1 August 2011 Criminal Session in Haywood County Superior Court. At the close of the State's evidence and all the evidence, defendant moved to dismiss all the charges. The court granted defendant's motion to dismiss the charge of maintaining a vehicle for controlled substances, but denied the motion as to the other charges. The jury found defendant guilty of each of the remaining charges. The trial court sentenced defendant to a minimum 90 months and a maximum 117 months imprisonment. Defendant appeals.
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On appeal, defendant argues that her conviction should be vacated because (1) she received ineffective assistance of counsel based on her lawyer's failure to timely file motions to suppress evidence and (2) there was a fatal variance between the indictment, evidence, and jury instructions regarding the weight and composition of the controlled substance possessed.
I.
Defendant contends that her counsel's failure to timely file motions to suppress statements and evidence seized pursuant to a warrantless search was deficient and prejudicial to the outcome in her case, thereby amounting to ineffective assistance of counsel.
To succeed on an ineffective assistance of counsel claim, a defendant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984). Deficient performance may be established by showing that counsel's conduct fell below an objective standard of reasonableness. State v. Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985). “Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and internal quotation marks omitted), cert. denied,549 U.S. 867, 166 L.Ed.2d 116 (2006).
Although defendant contends that her attorney was deficient in failing to make a timely motion to suppress the evidence seized and statements made pursuant to her traffic stop, we conclude defendant has failed to show that she was prejudiced thereby. Defendant argues that, had her suppression motion been timely, it would have succeeded because Trooper Henderson did not have reasonable suspicion to prolong the stop past the time when the trooper gave defendant the traffic citations, and therefore, the seizure was unlawful at the time that defendant gave consent to search. We disagree.
Once an officer lawfully stops a person, the officer may further detain the person only if he has “reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot.” State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999). Here, Trooper Henderson saw defendant making “erratic” movements when he first approached the vehicle, including the “throwing” motion. Both Trooper Henderson and Deputy Beasley noted that defendant had a “nervous” demeanor. Furthermore, Deputy Beasley witnessed defendant “rummaging” through her purse when she did not know he was looking in her window and seemed startled when she saw him, like she was “attempting to hide something.” These observations represent sufficient specific and articulable facts to afford Trooper Henderson reasonable suspicion to prolong the stop after giving defendant her traffic citations. See id. at 638, 517 S.E.2d at 134 (“[N]ervousness is an appropriate factor to consider when determining whether a basis for reasonable suspicion exists.”); State v. Miller, 198 N.C.App. 196, 199, 678 S.E.2d 802, 805 (2009) (stating that evasive actions taken by the defendant, such as attempting to hide narcotics, “may be relevant when examining whether reasonable suspicion was present at the time of a stop”). Therefore, the seizure of defendant was not unlawfully prolonged and was not illegal at the time that defendant gave consent to search her vehicle. For this reason, “[a]s the trial court found that there was consent for the search, a timely written motion to suppress would have made no difference in the outcome of the case.” State v. Paige, 202 N.C.App. 516, 524, 689 S.E.2d 193, 198,disc. review denied,364 N.C. 130, 696 S.E.2d 697 (2010).
II.
Defendant further contends that, although she was indicted for trafficking in dihydrocodeinone of at least 14 grams but less than 28 grams based on the approximately 26.3 grams of dihydrocodeinone found in her vehicle, the pills represented a mixture, not pure dihydrocodeinone, and therefore, the correct weight of the opium derivative was actually much less than was charged. Defendant argues that this is a fatal variance which should result in a reversal of her conviction by the court.
The existence of “[a] fatal variance between the allegations of the indictment and the proof is properly raised by a motion to dismiss.” State v. Tyndall, 55 N.C.App. 57, 61, 284 S.E.2d 575, 577 (1981). A criminal defendant must specifically state the variance between the indictment and evidence presented as grounds for the motion to dismiss. State v. Curry, 203 N.C.App. 375, 384, 692 S.E.2d 129, 137,appeal dismissed and disc. review denied,364 N.C. 437, 702 S.E.2d 496 (2010).
In making her motions to dismiss at the close of the State's evidence and at the close of all the evidence, defendant failed to specifically state the alleged variance as grounds for dismissal. Nor did defendant object to the jury charge or testimony by the SBI analyst who tested the pills on the grounds that there was a fatal variance between the evidence and jury charge and the indictment. For this reason, we find that defendant has failed to preserve this issue for appellate review. See State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (“In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.”); see alsoN.C.R.App. P. 10(a)(2) (“A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires....”).
Moreover, had defendant properly preserved the question for review, her argument would have no merit. Our Court has previously recognized that N.C.G.S. § 90–95(h)(4) includes mixtures and that the total weight of the substance—rather than that of the pure controlled substance—is the weight relevant when selecting the proper charge. SeeN.C. Gen.Stat. § 90–95(h)(4) (2011); State v. Jones, 85 N.C.App. 56, 68, 354 S.E.2d 251, 258,disc. review denied, 320 N.C. 173, 358 S.E.2d 62,cert. denied,484 U.S. 969, 98 L.Ed.2d 404 (1987).
We have considered defendant's remaining arguments and find that they are wholly without merit, and therefore, overrule them without discussion.
No error. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).