State v. Romero

• Decision Date: 07 August 2012
• Docket Number: No. COA12–127.,COA12–127.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Marvin Ceasar ROMERO, Defendant.

729 S.E.2d 731

STATE of North Carolina
v.
Marvin Ceasar ROMERO, Defendant.

No. COA12–127.

Court of Appeals of North Carolina.

Aug. 7, 2012.

Appeal by defendant from judgment entered 9 August 2011 by Judge Arnold O. Jones, II in Johnston County Superior Court. Heard in the Court of Appeals 23 May 2012.

Attorney General Roy Cooper, by Assistant Attorney General Michael E. Bulleri, for the State.

James N. Freeman, Jr. for defendant-appellant.

GEER, Judge.

Defendant Marvin Ceasar Romero appeals from a judgment entered upon a jury verdict finding him guilty of trafficking in opiates by transportation and by possession. On appeal, defendant primarily argues that he was denied effective assistance of counsel when his trial counsel failed to file a motion to suppress evidence found and statements made during a Terry frisk. Because we hold that any motion to suppress should have been denied, defendant has not demonstrated that his counsel was ineffective.

Facts

The State's evidence at trial tended to show the following facts. On 14 October 2010, Chief Casey Jones of the Micro Police Department stopped a vehicle with inoperable taillights. Chief Jones smelled alcohol immediately as he approached the vehicle and noticed a puddle of liquid with a “white foamy residue on top” around defendant's feet in the rear passenger side of the vehicle.

Because the female driver appeared very nervous, Chief Jones had her step out of the vehicle. After speaking with the driver, Chief Jones walked to the rear passenger side to speak with defendant. At that point, Chief Jones could see that the floorboard was still damp, but noticed that the white foam was gone.

Chief Jones asked defendant to step out of the vehicle. He placed defendant in handcuffs for officer safety while he conducted a Terry frisk of defendant to see whether defendant had a weapon. During the frisk, Chief Jones noticed that when he reached halfway up defendant's inner thigh, defendant's leg muscles would get “extremely tight” as if he was clenching his legs together. Chief Jones asked defendant three times if he had anything in his genital or anal area, and each time defendant said “no.” Chief Jones then told defendant that he “knew something was in there based off the pat and feel, that [defendant] would remove it or [he] would remove it for him.” Defendant finally admitted that he did have something in his groin area, and, after Chief Jones removed one handcuff, he pulled out a pill bottle. Defendant told Chief Jones that the pills belonged to his mother. When defendant failed to answer any further questions, Chief Jones put the handcuffs back on and put defendant in his patrol vehicle.

While Chief Jones was focusing on the remaining passengers in the car, he heard the door of his patrol car click. When he looked back, he saw that defendant was no longer in the patrol car. Approximately two and a half hours later, officers found defendant, still handcuffed, lying in a ditch.

The pill bottle taken from defendant was provided to the State Bureau of Investigation for processing. Agent Jennifer West, a special agent with the North Carolina State Crime Lab, testified that she tested and analyzed the pills in the bottle. According to Agent West, there were 30 1/2 oxycodone pills. The total weight of the oxycodone was 14 grams.

On 7 March 2011, defendant was indicted on two counts of trafficking in opiates, synthetic opiates, and opiate derivatives, with one count trafficking by transportation and one count trafficking by possession. Prior to trial, it came to the attention of the trial court that defendant had previously sent a letter to the Chief District Court Judge of Johnston County complaining about his attorney. Defendant's attorney, who found out about the letter the night before trial, moved to withdraw as counsel of record. After questioning defendant and counsel and making findings, the court denied the motion to withdraw, and trial commenced.

At trial, when the State moved to introduce the pill bottle, defense counsel objected by saying: “We would object, Your Honor, and would like to be heard.” The specifics of defendant's objection were never stated on the record. A sidebar conference took place, and the trial court overruled the objection, stating only: “Objection is overruled as to what the testimony is. It speaks for itself.” The pill bottle was then published to the jury.

Defendant did not put on any evidence, and the jury convicted him of both trafficking counts. The trial court sentenced defendant to a term of 90 to 117 months imprisonment. Defendant timely appealed to this Court.

I

Defendant contends that the evidence of the pill bottle, as well as defendant's statements to Chief Jones during the Terry frisk, should have been excluded on the grounds that the pill bottle was seized through an unconstitutional search and the statements were obtained in violation of his Miranda rights. Defendant acknowledges that he did not file a motion to suppress and that his counsel's objection may not have been sufficient to preserve these constitutional issues. He argues, however, that the admission of the pill bottle and statements constituted plain error and was the result of ineffective assistance of counsel....