State v. Elliott
| Decision Date | 04 February 2020 |
| Docket Number | No. COA19-123,COA19-123 |
| Citation | 837 S.E.2d 482 (Table) |
| Parties | STATE of North Carolina v. Kareen Ramel ELLIOTT |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Adrian W. Dellinger, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C. Katz, for defendant.
A law enforcement officer stopped and frisked Kareen Ramel Elliott, a known drug dealer, after approaching Elliott and smelling marijuana. The officer found cocaine and marijuana during the pat-down. Elliott ultimately was convicted of drug possession offenses.
On appeal, Elliott challenges the trial court’s denial of his counsel’s motion to withdraw; the denial of his motion to suppress evidence seized from the pat-down; and the denial of his motion to suppress based on the sufficiency of the warrant application to search his two cell phones.
As explained below, the trial court properly denied counsel’s motion to withdraw after an appropriate colloquy with Elliott; the arresting officer had sufficient reasonable suspicion to frisk Elliott for weapons; and the warrant application and accompanying affidavit provided a substantial basis for a finding of probable cause. We therefore find no error in the trial court’s judgments.
On 28 August 2015, local law enforcement in Havelock were assisting probation officers with searches of probationers and parolees. Detective Philip Kilgore and his team were looking for a probationer living in Kelly Park Apartments, where Detective Kilgore had previously made between ten to fifteen arrests for drug-related crimes.
When Detective Kilgore drove up to the apartment complex, he saw Defendant Kareen Elliott at the entrance. Kilgore knew of Elliott’s reputation as a local drug dealer and member of the United Blood Nation, a street gang that sells illegal drugs. As Kilgore got out of his car, he saw two more men standing under a breezeway at the front entrance. Kilgore smelled a strong odor of marijuana coming from that area.
Kilgore walked toward the breezeway, wearing a tactical vest with the word "Police" on the front and with his police badge clearly visible. Elliott looked over his shoulder, saw Kilgore, and "quickly" walked away. Kilgore called out to Elliott multiple times, telling him to stop, that Kilgore needed to speak to him, and that he was "not free to leave." Elliott replied that he "had just smoked." Elliott continued to walk away from Kilgore until both walked into a corner of the building. Kilgore ordered Elliott to place his hands on the wall and conducted a pat-down "[f]or weapons, for my safety and the safety of the other officers."
During the pat-down, Kilgore found a bag of marijuana buds, a plastic bag of white powder resembling cocaine, $100.00 in cash, and two cell phones on Elliott’s person. Kilgore later testified that the cash was folded together in a way that was "indicative of multiple drug transactions." Kilgore arrested Elliott. Laboratory testing later confirmed that Elliott was carrying 13.38 grams of marijuana and 2 grams of cocaine.
After the arrest, Kilgore applied for a warrant to search Elliott’s two cell phones. The warrant was issued and law enforcement recovered data from one of the phones that included text messages Elliott sent to others discussing the sale of illegal drugs.
On 19 February 2018, Elliott was tried on charges of possession with intent to sell or deliver marijuana and cocaine. Before trial, Elliott moved to suppress evidence from his pat-down and the search of his cellphone. After a hearing, the trial court denied both motions. At trial, the jury found Elliott guilty of both charges. Elliott then pleaded guilty to attaining habitual felon status. The court sentenced Elliott to consecutive sentences of 111 to 146 months and 44 to 65 months in prison. Elliott appealed.
Before trial, Elliott’s attorney filed a motion to withdraw, stating only that Elliott asked him to do so because they had "reached an impasse." The trial court questioned Elliott directly about the basis for the motion and then denied it. Elliott now argues that the trial court erred by failing to conduct a more thorough inquiry before denying the motion. We disagree.
A trial court may grant a motion to withdraw as counsel "upon a showing of good cause." N.C. Gen. Stat. § 15A-144. Whether counsel may withdraw is a matter left to the trial court’s sound discretion, and appellate courts will not second-guess the trial court’s ruling absent an abuse of that discretion. State v. Curry , 256 N.C. App. 86, 95, 805 S.E.2d 552, 557–58 (2017).
Before ruling on a motion to withdraw, the trial court must "inquire into defendant’s reasons for wanting to discharge his attorney[ ]" and "determine whether those reasons [are] legally sufficient." State v. Hutchins , 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). In doing so, the trial court need only satisfy itself that the "present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective." State v. Thacker , 301 N.C. 348, 353, 271 S.E.2d 252, 256 (1980).
Here, the trial court heard the motion to withdraw at the beginning of Elliott’s trial, where the following colloquy occurred:
Elliott acknowledges on appeal that, in essence, his discussion with the trial court expressed two separate grounds for relieving his trial counsel and appointing new counsel: (1) that Elliott disagreed with his attorney over "strategic and tactical matters"; and (2) that Elliott’s counsel refused to assist him in pleading guilty to certain lesser offenses and avoiding an "unnecessary trial" on the more serious offenses involving "intent to sell or deliver."
With respect to trial strategy, the complaints directed at Elliott’s counsel (many of Elliott’s complaints stemmed from prosecutorial charging decisions outside his counsel’s control) concern Elliott’s perception that his counsel was not "fighting" hard enough for him and was not focused on his case. These complaints are not grounds for granting an appointed attorney’s motion to withdraw. Hutchins , 303 N.C. at 335, 279 S.E.2d at 797. Accordingly, the trial court was not required to delve further into the reasons Elliott and his counsel had reached a purported "impasse" on this basis. The court’s colloquy with Elliott was sufficient to confirm that these disagreements did not stem from any issues requiring counsel to withdraw as a matter of law. State v. Poole , 305 N.C. 308, 312, 289 S.E.2d 335, 338 (1982).
With respect to the possibility of avoiding an "unnecessary trial" by pleading guilty to lesser offenses not involving the "intent to sell or deliver," neither Elliott’s statement to the court nor the record support this argument. First, in the context of his entire statement, Elliott’s reference to his desire to avoid an unnecessary trial indicates that it was the State , not his counsel, who insisted on a trial involving more serious charges. Elliott explained that "the State" and the arresting officer had not charged him with the "appropriate charge." He then arguably suggests that he is willing to plead guilty to a lesser charge ("I have no rebuttal in giving the State a conviction") but explains that he will not plead guilty to the more serious charges of possession with intent to sell or deliver—the charges the State chose to pursue.
Nowhere in this discussion with the court did Elliott either state or imply that his counsel was an obstacle to his desire to plead guilty. His complaint was directed at the charging decision made by the State. Moreover, nothing in the record suggests the State was willing to accept a plea to simple possession from Elliott, a man who, according to the State’s evidence, is a known drug dealer and member of a street gang engaged in serious drug trafficking. We thus reject Elliott’s argument that the court was required to engage in a further colloquy with Elliott concerning his appointed counsel.
Next, Elliott appeals the denial of his motion to suppress evidence seized from his person during the pat-down. Because Elliott did not object at the time the evidence was offered at trial, our review is limited to plain error analysis. State v. Williams , 248 N.C. App. 112, 117–18, 786 S.E.2d 419, 424 (2016).
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