State v. Hargett

• Decision Date: 19 May 2015
• Docket Number: No. COA14–1252.,COA14–1252.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Raymond L. HARGETT.

241 N.C.App. 121

772 S.E.2d 115

STATE of North Carolina

v.Raymond L. HARGETT.

No. COA14–1252.

Court of Appeals of North Carolina.

May 19, 2015.

Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton III, for the State.

Appellate Defendant Staples Hughes, by Assistant Appellate Defender Paul M. Green, for Defendant.

STEPHENS, Judge.

Evidence and Procedural Background

Defendant Raymond L. Hargett appeals from the denial of a pretrial motion to suppress evidence and from the judgments entered upon his convictions of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and possession of drug paraphernalia, as well as his subsequent guilty plea to habitual felon status. Because Hargett failed to preserve the error he alleges in this appeal, we must dismiss.

The charges against Hargett arose from the events of 23 May 2013. On that morning, the New Bern Police Department ("NBPD") received a call from a citizen who requested a security check on a residence at 708 A Street in New Bern. The caller stated that the owner of the residence was incarcerated, but that he had driven past that morning and noticed that "the window shades had been pushed back." Officer Edwin D. Santiago, Jr., and Detective David Upchurch of the NBPD responded to the residence, and, upon arriving, Officer Santiago saw "that the shade had been—the screen had been pushed to the side. [It l]ooked like it had been pulled back .... and that the window was up." Concerned that someone might have broken into the residence, Officer Santiago knocked on the front door and got no response. Officer Santiago knocked several more times before finally getting a response. After Officer Santiago identified himself as a police officer, Hargett opened the door. At the suppression hearing, Officer Santiago testified as follows about what happened next:

I asked him if he was the homeowner of the residence, and he hesitated to answer that question, didn't come out and immediately say no. He finally did answer the question and said no. And then I asked him for his name, in which he hesitated giving me his name, but then he initially gave me his name as Raymond Hargett.

....

He finally told me his name was Raymond Hargett, and then I asked him if he was the—if he was the owner of the residence, and he stated no. Then I asked him for ID. He didn't have any ID on him. ....

While talking to him, at that point I asked him to step out of his residence and I detained him. I told him he was—I told him he was not under arrest, but because he couldn't tell me who he was and who the homeowner is at the residence, that he was being detained so that I could find out who the actual homeowner of the house was.

....

While I was talking to him, he kept putting his hands in his pocket, and I asked him, "Don't put your hands in your pocket." He kept putting his hands in his pocket. So when he came out, and based on, you know, not knowing who he was at the time because he couldn't produce any ID, and he hesitated to tell me who his name was and he hesitated on telling me he wasn't—you know, who the homeowner was and everything, I detained him.

Officer Santiago testified that he was concerned for his safety and unsure whether Hargett might have a weapon. As a result, he handcuffed Hargett and

patted him down from the top up, from the waist and then down towards his legs, you know, his pocket area, his groin area, then down his legs. When I patted down towards his left leg, I could smell an odor of marijuana, and I felt two bulges in his left—left pant leg. When I lifted it up, there was two bulges in his sock. He had his socks up.

....

The smaller bulge felt to me as a small baggy of marijuana, through my training and experience. And then the large bag had just—had several but, I mean, I couldn't tell what that was. But when I rolled down the sock—when I rolled his sock down, of course, the small bag came out and it was marijuana. And when I opened the other bag, what came out was a brown paper bag. When I opened that up, there was several other baggies of marijuana inside.

When asked about his training and experience in identifying controlled substances such as marijuana, Officer Santiago explained:

Through, of course, basic law enforcement training, they teach us and they show us what—you know, they put it in your pocket so you can feel what it feels like when you're patting somebody down. Also, the odor of marijuana. We do controlled burns and stuff like that. And I have arrested numerous individuals with marijuana in their pocket, based on the odor of marijuana, and it felt the same way.

Officer Santiago then arrested Hargett, and, shortly thereafter, two other NBPD officers arrived at the residence. Officer Santiago had the other officers conduct a security sweep of the residence to determine whether anyone else was inside. The officers did not find any other person in the home, but did discover more plastic baggies and a smoking pipe made from a soda bottle. In addition, as Hargett was being placed into a patrol car after his arrest, Officer Santiago frisked him again and discovered a small baggie containing at least twenty smaller baggies of cocaine in Hargett's sock.

On 14 October 2013, Hargett was indicted on one count each of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, possession of drug paraphernalia, and having attained the status of an habitual felon. On 2 February 2014, Hargett moved to suppress the cocaine, marijuana, and drug paraphernalia discovered by officers on 23 May 2013. Hargett's case came on for trial at the 7 April 2014 session of Craven County Superior Court. Following a hearing on his motion, Hargett's motion to suppress was denied by the trial court. The jury returned guilty verdicts on all three possession offenses, and Hargett then entered a plea of guilty on the habitual felon charge. The trial court consolidated certain convictions and entered two judgments with concurrent sentences, the greater of which imposed 90–120 months imprisonment. Hargett gave notice of appeal from those judgments in open court.

Preservation of Hargett's Appellate Issue

The law in this State is now well settled that "a trial court's evidentiary ruling on a pretrial motion [to suppress] is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial." State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (citations omitted; emphasis in original). In Oglesby, our Supreme Court considered the exact question presented in this appeal: whether a "defendant should be barred from raising this issue [error in the denial of a motion to suppress evidence] on appeal since he did not renew his objection at trial and has not argued, alternatively, that the trial court committed plain error by allowing the [challenged evidence] entered into evidence." Id. at 553–54, 648 S.E.2d at 821 (citations omitted). The Court noted that, in failing to object to the challenged evidence at his trial in May 2004, the

defendant may have relied to his detriment on a 2003 amendment to [ ] North Carolina Rule[ ] of Evidence [103(a)(2) ], which provides in pertinent part: Once the [trial] court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. There is a direct conflict between this evidentiary rule and North Carolina Rule of Appellate Procedure 10(b)(1),¹ which this Court has consistently interpreted to provide that a trial court's evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial.

Id. at 554, 648 S.E.2d at 821 (citations and internal quotation marks omitted; emphasis in original). Oglesby was the first Supreme Court case to address the conflict between the amended evidentiary rule and Rule of Appellate Procedure.² The Court held Rule 103(a)(2) unconstitutional because

[t]he Constitution of North Carolina expressly vests in this Court the exclusive authority to make rules of procedure and practice for the Appellate Division. Although Rule 103(a)(2) is contained in the Rules of Evidence, it is manifestly an attempt to govern the procedure and practice of the Appellate Division as it purports to determine which issues are preserved for appellate review. Accordingly, we hold that, to the extent it conflicts with Rule of Appellate Procedure 10(b)(1), Rule of Evidence 103(a)(2) must fail.

Id. (citations and internal quotation marks omitted). However, because "the amendment to Rule 103(a)(2) was presumed constitutional at the time of [the] defendant's trial, which was held before the Court of Appeals decision in Tutt [and g]iven the harsh consequences of barring review when a defendant has relied to his detriment on existing law," the Supreme Court elected to exercise its "discretion under Appellate Procedure Rule 2 to prevent manifest injustice to [the] defendant and to review his contention on the merits." Id. at 555, 648 S.E.2d at 821–22. Those circumstances are not present in this case.

Here, at trial, Hargett objected to admission of two out of five bags of cocaine, but did not object to the other three bags of cocaine, the eight bags of marijuana, or drug paraphernalia introduced at trial. Hargett did not object to any testimony from the officers about their discovery of the drugs and drug paraphernalia. On appeal, in his opening brief, Hargett did not acknowledge his failure to object to the majority of the evidence he contends should have been suppressed, did not cite Oglesby, and did not argue plain error or request that this Court review his argument under Rule 2 of our Rules of Appellate Procedure.

In response to the State's discussion of Hargett's failure on these grounds, Hargett has...