State v. Jilani
| Citation | 817 S.E.2d 921 (Table) |
| Decision Date | 18 September 2018 |
| Docket Number | No. COA18-123,COA18-123 |
| Parties | STATE of North Carolina v. Mohammed Nasser JILANI, Defendant. |
| Court | Court of Appeal of North Carolina (US) |
Attorney General Joshua H. Stein, by Assistant Attorney General Derek L. Hunter, for the State.
Office of the Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A. Goldman, for defendant-appellant.
HUNTER JR., Robert N., Judge.
Mohammed Nasser Jilani ("Defendant") appeals following a jury verdict finding him guilty of possession of marijuana. On appeal, Defendant contends the court erred in denying his motions to dismiss for lack of sufficient evidence he possessed marijuana and violation of his constitutional right to a speedy trial. We find no error.
On 23 March 2015, a Wake County Grand Jury indicted Defendant for the following: (1) possession with the intent to sell or deliver marijuana; (2) felonious possession of a stolen firearm; and (3) possession of a firearm by a convicted felon.
On or about 21 April 2015, Defendant sent the trial court a motion for speedy trial.1 On 27 April 2015, Defendant wrote to the clerk of superior court, asking her to file his motion for speedy trial.
On 28 May 2015, the Honorable Donald W. Stephens held a hearing. At the hearing, Colby Barry represented Defendant. Barry informed the court his relationship with Defendant "deteriorated a little over the past weeks[.]" Defendant discussed his writ of habeas corpus, part of which he based on ineffective assistance of counsel.2 Defendant asserted he planned on hiring another attorney. The court released Barry as Defendant's counsel. The court asked the State to calendar Defendant's case for 15 June 2015. On the same day, the court entered an order, instructing the public defender's office to appoint another lawyer to be Defendant's counsel.
On 16 July 2015, Defendant appeared before Judge Stephens for arraignment. His new assigned counsel, Taylor Manning, informed the court Defendant would not speak with him. Defendant asserted Manning "failed to investigate ... possible defenses[.]" After colloquy, the court found Defendant waived his right to counsel and elected to proceed pro se . The court released Manning as Defendant's counsel.
After arraignment, the court instructed the State to provide additional discovery to Defendant and set the case for trial. Defendant moved for dismissal, based on denial of his Sixth and Fourteenth Amendments rights.3 He argued prior counsel's "deficient performance has caused such irreparable prejudice to the preparation" of his case. The court denied the motion. Defendant also filed a motion for speedy trial, asking "to be tried immediately, soon as possible" due to his eight month incarceration. The court took the motion under consideration.
On 13 October 2015, Defendant filed a letter addressed to the court. In the letter, Defendant asserted the following. He experienced "issues" with the assistant district attorney and asserted she acted "highly unprofessional as well as unethical." The assistant district attorney insisted Manning still represented Defendant. The State prevented him from appearing in court on motions he filed. The assistant district attorney did not notify Defendant of any court dates, or changes of court dates.
On 19 October 2015, attorney Andrew McCoppin filed, on Defendant's behalf, a request for arraignment, a motion for complete recordation of all proceedings, and a motion for speedy trial. The next day, Defendant filed a letter, asserting he waived his right to counsel in July, but the public defender's office appointed counsel twice since then. Since July, Defendant had not returned to court and requested to be brought to court as soon as possible.
On 29 October 2015, the Honorable W. Osmond Smith held a hearing. The State contended after the court released Manning, Defendant contacted Manning, indicating he wanted Manning to represent him. The court characterized the appointment of McCoppin as "error or inadvertent" and vacated McCoppin's appointment. In court, Judge Smith signed the copy of Defendant's prior waiver of counsel, "[r]eaffirming" it. The court instructed the State to set a new court date, so it could hear Defendant's motions. When Defendant asked to be heard at that hearing, the court stated it could not hear the motions then, and the earliest date available was 26 January 2016.
On 25 January 2016, another Wake County Grand Jury indicted Defendant, via a superseding indictment, for possession of a firearm by a convicted felon.
On 5 February 2016, Defendant filed a motion and requested a hearing.4 On 9 February 2016, Defendant filed a motion for removal of district attorneys. In his motion, Defendant asserted the following. The assistant district attorney used "the abuse of discretion and abuse of process to punish and bully [him] for choosing to proceed with nothing more than the law clearly allows [him] to do." At the October 2015 hearing, he tried to speak with the assistant district attorney, but she responded, "[She] ha[d] more important things to do[.]" Additionally, the assistant district attorney served discovery in a form Defendant could not use and gave Defendant no time to prepare for a 25 January 2016 court date.
On 17 February 2016, Defendant filed an attachment to his motion for removal of district attorneys. Defendant asserted the State set trial for 25 January 2016 and then 26 January 2016. However, "without notice or explanation" the assistant district attorney cancelled the trial.
On 8 April 2016, Judge Stephens sent a letter to the senior assistant district attorney. In the letter, Judge Stephens wrote, "If the above-styled cases are not tried or otherwise resolved prior to the end of my administrative week of May 2, 2016, I will have the defendant brought before the Court to review the conditions of his pretrial release."
On 27 April 2016, the Honorable Paul C. Ridgeway held a hearing on several pretrial motions. Defendant moved to dismiss the case, arguing he received ineffective assistance of counsel, which prejudiced his defense. Defendant also argued the State violated his right to a speedy trial. The State asserted it spoke with Defendant, and he agreed to a plea arrangement. However, when the State "brought him out, he declined to do a plea." The trial could be not be held the day the State "brought [Defendant] out" due to another scheduled jury trial. Following that court appearance, the State set Defendant's case for trial. The court denied Defendant's motion.
On 28 April 2016, the court called Defendant's case for trial.
The State called Steven Chatsworth. Chatsworth lived in Cary, North Carolina. On or about 30 October 2014, Chatsworth left home to run errands. When he returned home, he could "see that cushions and stuff were taken off [his] couch and it was obvious that somebody had been in there ... rummaging through the house[.]" Chatsworth went to his car and called the police. Police arrived and looked through his home. After their search, Chatsworth gave officers a list of missing items, which included "numerous" guns. One of the missing guns was a Bersa .380.
The State next called Shawn Thompson, an officer with the Raleigh Police Department. On 12 December 2014, around 9:30 p.m., Officer Thompson patrolled Capital Boulevard. While traveling southbound, he noticed a silver Toyota. Officer Thompson decided to "do a basic check to see if there was any traffic violations" and ran the car's information through the police database.
The cars drove up to a red light. The Toyota stopped first at the light. As Officer Thompson pulled up next to the Toyota, he saw the driver adjust his hood "up over his face[.]" The passenger, Defendant, leaned back in his seat, got lower in the seat, and stared straight ahead. Based on his training and experience, Officer Thompson thought the behavior was unusual. He also thought the driver and Defendant did not want him to fully see their faces.
When the light turned green, the Toyota turned left on Trawick Road, and Officer Thompson continued traveling down Capital. Fifty yards down Capital, the police database alerted Officer Thompson of two outstanding warrants for Scott Bellmavis. Based on the picture in the alert, Officer Thompson concluded Bellmavis drove the Toyota.
The alert also gave Officer Thompson Bellmavis's address. Officer Thompson drove to Bellmavis's home and radioed other officers for backup. When he arrived at Bellmavis's home, he saw a car parked on the street. Officer Thompson slowly drove past the car to see if it was the Toyota from earlier. The interior light was on. He saw no one sat in the driver's seat, but Defendant sat in the front passenger seat. Officer Thompson notified other officers Bellmavis was no longer in the car and may be inside the home.
Officer Thompson parked "three car lengths down[.]" He walked up to the driver's side of the Toyota. As he neared the car, he "made [Defendant] aware that ... [he] was coming to speak with him[.]" Defendant rolled down the driver's side window. Officer Thompson "immediately" smelled the odor of marijuana, a "combination" of unburnt and burnt marijuana.
Officer Thompson asked Defendant about Bellmavis and made other "short conversation[.]" Defendant told Officer Thompson that Bellmavis went inside the home. As they talked, Officer Thompson noticed Defendant Defendant also spoke "pretty fast" and "slightly" shook "a little bit[.]" This level of nervousness "was slightly elevated" compared to the normal levels of nervousness seen during other traffic stops.
When Officer Thompson "made [Defendant] aware" he smelled marijuana, Defendant "appeared to get a little bit more nervous and really forthcoming with the information." Defendant told Officer Thompson he "probably had some marijuana" in his pocket. Typically, "subjects" do not tell officers ...
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