State v. Harwood, COA11–1513.

• Decision Date: 03 July 2012
• Docket Number: No. COA11–1513.,COA11–1513.
• Citation: 727 S.E.2d 891
• Parties: STATE of North Carolina v. Joshua Edward HARWOOD.
• Court: North Carolina Court of Appeals

727 S.E.2d 891

STATE of North Carolina

v.Joshua Edward HARWOOD.

No. COA11–1513.

Court of Appeals of North Carolina.

July 3, 2012.

Appeal by defendant from judgment entered 3 August 2011 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 4 April 2012.

Attorney General Roy Cooper, by Special Deputy Attorney General Angel E. Gray, for the State.

Russell J. Hollers III, Durham, for defendant-appellant.

ERVIN, Judge.

Defendant Joshua Edward Harwood appeals from a judgment sentencing him to twelve to fifteen months imprisonment based upon his convictions for possession of a firearm by a convicted felon, possession of marijuana with intent to sell or deliver, possession of cocaine with intent to sell or deliver, and simple possession of a schedule IV controlled substance. On appeal, Defendant contends that the trial court erred by denying his motion to suppress, admitting evidence obtained as the result of an unlawful detention of his person, and ordering the forfeiture of currency found in his possession and that his trial counsel's failure to object to the admission of the challenged evidence at trial constituted ineffective assistance of counsel. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant is entitled to a new trial and that the order of forfeiture should be vacated pending further proceedings in the court below.

I. Factual Background

A. Substantive Facts

On 15 July 2010, Agent Mitch McAbee, a deputy with the Buncombe County Sheriff's Department who worked as a member of the Buncombe County Anticrime Task Force, received an anonymous tip indicating that, later that day, Defendant would be selling marijuana to an unidentified individual at a certain convenience store located in Weaverville and that Defendant would be driving a “white vehicle.” Although Agent McAbee had not previously encountered Defendant, he had learned from “talking to people in the community ... since [being] on patrol” that Defendant had been “supposedly ... selling illegal drugs in that part of the county for a long time.”

After obtaining a photograph of Defendant and reviewing Defendant's local criminal history, Agent McAbee and Agent Tim Goodridge, another member of the Buncombe County Anticrime Taskforce, drove to the convenience store in an unmarked vehicle which lacked blue lights or a siren. As Agent McAbee pulled into the convenience store parking lot, a white vehicle, beside which an individual was standing, began backing out of a parking space. As the white vehicle backed out, Agent McAbee identified Defendant as the driver and followed Defendant's vehicle onto the highway.

After traveling a short distance, Agent McAbee observed Defendant's vehicle accelerate and then turn off the highway onto a secondary road and into a housing development. At that point, Defendant parked his vehicle in the driveway of a residence which had an address different than that of Defendant. As a result, Agent McAbee pulled into the driveway behind Defendant's vehicle. After Agent Goodridge observed that the front doors to Defendant's vehicle appeared to be open, both officers exited their vehicle with weapons drawn, identified themselves, and ordered Defendant and his passenger, David White, to exit Defendant's vehicle. Agent McAbee approached Defendant, “placed him on the ground and handcuffed him.”

As other officers arrived, Agent McAbee escorted Defendant to the agents' vehicle in order to speak with him. At some point, Agent McAbee determined that there was an outstanding warrant for Defendant's arrest. Although Agent McAbee could not recall if he removed Defendant's handcuffs or read Defendant his Miranda rights, his standard practice would have been to do so. After Agent McAbee told Defendant about the anonymous tip that he had received and after a certain amount of additional conversation, Defendant admitted that he had traveled to the gas station for the purpose of selling marijuana. When Agent McAbee asked if Defendant had any more marijuana and if he would be “willing to let [agents] go back to his residence and look,” Defendant agreed. As Agent McAbee was speaking with Defendant, Agent Goodridge took Mr. White aside, removed his handcuffs, and discovered a small amount of marijuana on his person which Mr. White indicated belonged to Defendant.

After the agents and Defendant arrived at Defendant's residence, Defendant provided a key to the door. The agents and Defendant went inside the home and into Defendant's bedroom, where the agents found a loaded SKS rifle and two ammunition canisters containing quantities of marijuana, cocaine and pills, some of which were identified as Diazepam. After making this discovery, Defendant was placed under arrest based upon the outstanding warrant.

B. Procedural History

On 9 November 2010, warrants for arrest charging Defendant with possession of marijuana with the intent to sell or deliver, possession of cocaine with the intent to sell or deliver, and simple possession of a schedule IV controlled substance were issued. On 2 May 2011, the Buncombe County Grand Jury returned bills of indictment charging Defendant with possession of marijuana with the intent to sell or deliver, possession of cocaine with the intent to sell or deliver, simple possession of a schedule IV controlled substance, and possession of a firearm by a felon. On 1 August 2011, Defendant filed a motion seeking the suppression of any evidence, including statements, obtained as the result of his encounter with Agent McAbee and the subsequent search of his residence on the grounds that the evidence in question was obtained in violation of his constitutional right to be free from unreasonable searches and seizures.

The charges against Defendant came on for trial before the trial court and a jury at the 1 August 2011 criminal session of Buncombe County Superior Court. After conducting a pre-trial hearing, the trial court denied Defendant's suppression motion, reciting findings of fact on the record consistent with the factual statement set out above and concluding that (1) a traffic stop did not take place and (2) the officers possessed a “sufficient articulable suspicion that the [D]efendant was involved with the possession and sale and distribution of illegal substances.” At the conclusion of all of the evidence, Defendant's counsel renewed his suppression motion, which the trial court denied once again. Defendant's counsel did not, however, object when the State offered testimony concerning Defendant's consent to the search of his residence or when the firearm and controlled substances seized inside Defendant's residence were admitted into evidence.

On 3 August 2011, the jury returned verdicts convicting Defendant as charged. The trial court consolidated Defendant's convictions for judgment, sentenced Defendant to an active term of twelve to fifteen months imprisonment, and ordered that certain currency taken from Defendant be forfeited. Defendant noted an appeal to this Court from the trial court's judgment.

II. Legal Analysis

A. Standard of Review

In our review of trial court orders addressing suppression motions, “ ‘the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. This Court must not disturb the trial court's conclusions if they are supported by the [trial] court's factual findings. However, the trial court's conclusions of law are fully reviewable on appeal.’ ” State v. Leach, 166 N.C.App. 711, 715, 603 S.E.2d 831, 834 (2004) (quoting State v. McArn, 159 N.C.App. 209, 211–12, 582 S.E.2d 371, 373–74 (2003) (internal citations and quotation marks omitted)), appeal dismissed,359 N.C. 640, 614 S.E.2d 538 (2005).

“[A] pretrial motion to suppress evidence is not sufficient to preserve for appellate review the issue of whether the evidence was properly admitted if the defendant fails to object at the time the evidence is introduced at trial.” State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120 (2002) (citations omitted), cert. denied,538 U.S. 1040, 123 S.Ct. 2087, 155 L.Ed.2d 1074 (2003). In view of the fact that Defendant's counsel failed to object to the admission of the challenged evidence at trial, Defendant did not preserve his challenge to the denial of his suppression motion for appellate review. State v. Jackson, ––– N.C.App. ––––, ––––, 710 S.E.2d 414, 418 (2011) (holding that the defendant waived his right to appellate review of the denial of his suppression motion by failing to object to the admission of the challenged evidence when it was offered at trial). However, given that Defendant has specifically argued that the trial court committed plain error by allowing the admission of the challenged evidence,¹State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 333 (2012) (stating that, “[t]o have an alleged error reviewed under the plain error standard, the defendant must ‘specifically and distinctly’ contend that the alleged error constitutes plain error”) (quoting N.C. R.App. P. 10(a)(4)); Jackson, ––– N.C.App. at ––––, 710 S.E.2d at 418 (declining to review the denial of the defendant's suppression motion under a plain error standard where the defendant failed to do more than simply state that the trial court committed plain error by admitting the challenged evidence), we will review the trial court's denial of Defendant's suppression motion for plain error. Leach, 166 N.C.App. at 714, 603 S.E.2d at 833–34 (reviewing the denial of a defendant's suppression motion using a plain error standard of review in a case in which the defendant, after failing to object to the admission of the challenged evidence at trial, specifically argued “plain error” on appeal).

As this Court and the Supreme Court have frequently stated, plain error consists of an error that is “so fundamental that it...