State v. Simmons, No. COA05-1588 (N.C. App. 10/3/2006)
| Decision Date | 03 October 2006 |
| Docket Number | No. COA05-1588,COA05-1588 |
| Parties | STATE OF NORTH CAROLINA v. TROTTI SIMMONS |
| Court | North Carolina Court of Appeals |
Stubbs, Cole, Breedlove, Prentis & Biggs, P.L.L.C., by C. Scott Holmes, for Defendant-Appellant.
Defendant, Trotti Simmons, appeals a conviction of felony possession of marijuana. We find no prejudicial error.
At Defendant's trial in April 2005, the State's evidence tended to show that, on 12 August 2003, Officer Jonathan Steven Tobbe of the Charlotte-Mecklenburg Police Department received an anonymous 911 call for service at an Econo Lodge Motel. The caller indicated that Defendant would be sitting in the motel parking lot in a dark green Toyota Camry in possession of marijuana and a shotgun. When Officer Tobbe arrived, Officer Eric Herron was already at the scene and had observed Defendant exit the Camry and walk quickly into the motel. Officer Tobbe went to Defendant's motel room and spoke with him about the vehicle. Upon smelling marijuana, Officer Tobbe asked Defendant if he could search his room. Defendant was "very cooperative" and allowed the search. Officer McCarty joined Officer Tobbe in Defendant's motel room. The search revealed no marijuana and Officer Tobbe decided not to arrest Defendant at that time. However, when Officer Tobbe brought up the subject of the Camry, Defendant became "belligerent." After Officer Tobbe told Defendant that he was going to search the Camry, Defendant asked to speak privately with him.
Defendant told Officer Tobbe that Michael Cornwell had twenty pounds of marijuana that he needed to "unload." He then proceeded to give Officer Tobbe a "hypothetical" regarding the Camry, stating,
Officer Tobbe thereupon sought and received consent from the owner of the car, who was at another location, to search it. Upon looking inside the car through the windows, Officer Tobbe saw a black bag on the front seat. Once Officer Tobbe opened the car door, he examined the black bag and found eleven bags of marijuana in a Ziploc baggie. In addition, there was another baggie of marijuana in the front compartment of the black bag. Defendant told Officer Tobbe that Michael Cornwell gave him twelve ounces of marijuana.
In the trunk of the Camry was a pistol-grip shotgun. Officer Tobbe confiscated both the gun and the drugs. Officers Herron and McCarty observed the gun and drugs being confiscated from the car. Officer Tobbe testified that the estimated value of the marijuana was $3,600.00. It was examined at the department's property control office and found to weigh thirteen ounces.
Tony Aldridge, the lead forensic chemist for the department's crime lab, separately weighed the small baggie and the larger baggie. They respectively weighed 21.43 grams and 302.62 grams. Each of the eleven individual baggies found inside the large bag weighed between one and 1.2 ounces, which Officer Tobbe characterized as the right amount for a sale package. The eleven baggies were all the same size. Officer Tobbe characterized the marijuana found in the front pocket of the black bag as a personal usage amount. Officer Herron testified that the manner in which the eleven individual baggies of marijuana were packaged indicated an intent to sell them.
On cross-examination, Officer Tobbe testified that Defendant told him a woman named "Candace" was the one who made the 911 call. Defendant also told Officer Tobbe that someone named "Shane" owned the marijuana. Defendant asked Officer Tobbe to speak with Shaneon the phone so that Shane would not believe Defendant had absconded with Shane's drugs.
Narendrakumar Patel, the owner of the Econo Lodge, testified that he knew Defendant because Defendant lived at the motel from March 2001 to August 2003. On a prior occasion, Mr. Patel had observed Defendant apprehend someone who was trying to break into a customer's car. Defendant called the front desk of the motel and explained what was happening. While waiting for the police to arrive, Defendant apprehended the perpetrator and held him at bay with a shotgun.
Candie Ardrena Epps testified that she was Defendant's fianceé and had dated him for ten years. She and Defendant have two children, a nine-year-old son and a six-year-old daughter. Ms. Epps periodically lived with Defendant at the Econo Lodge after Defendant's home burned down.
Ms. Epps testified that Defendant had a shotgun, but she did not allow him to keep it in the motel room because she was afraid of guns and did not want them around her children. Because of her fear, Defendant kept the shotgun in the trunk of the car. On 12 August 2003, Ms. Epps found out the content of the black bag in the Toyota Camry and made the 911 call. This occurred shortly after she and Defendant had an argument.
Defendant also testified. He said he has worked as a mechanic for twenty-three years and owns a repair shop called Fast Track Auto Mart. One of his customers was First Class Exotic Car, which operated stretch limousines. The owner of First Class Exotic Car was Shane. On 31 July 2003, Shane brought Defendant a "limo" that needed mechanical work. In turn, Defendant loaned Shane the green Camry for about a week and a half. On 12 August 2003, Shane picked up the repaired limousine and returned the Toyota Camry to Defendant.
Defendant admitted that the gun found in the trunk of the Camry belonged to him. Two days after the 12 August 2003 incident, Defendant called Officer Tobbe because he wanted him to call Shane. Defendant's motions to dismiss at the close of the State's evidence and all the evidence were denied. The trial court submitted the following charges to the jury: (1) possession with intent to sell and deliver marijuana, (2) felony possession of marijuana, and (3) simple possession of marijuana. After deliberations, the jury found Defendant guilty of felony possession of marijuana. The trial court sentenced Defendant to an active sentence of six to eight months and a consecutive thirty months of supervised probation. Defendant appeals.
Defendant first argues that the trial court erred by summarily denying his motion to suppress without conducting a hearing because he failed to file the motion in a timely manner. We disagree.
Section 15A-976 of the North Carolina General Statutes governs the timing of pretrial motions to suppress, as follows:
(a) A motion to suppress evidence in superior court may be made at any time prior to trial except as provided in subsection (b).
(b) If the State gives notice not later than 20 working days before trial of its intention to use evidence and if the evidence is of a type listed in G.S. 15A-975(b), the defendant may move to suppress the evidence only if its motion is made not later than 10 working days following receipt of the notice from the State.
N.C. Gen. Stat. § 15A-976 (2005) (emphasis added). When the defendant fails to timely file a motion to suppress, "he has waived his right to contest the admissibility of the evidence at trial or on appeal on constitutional grounds." State v. Tate, 300 N.C. 180, 183, 265 S.E.2d 223, 226 (1980) (citing State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978)). See also United States v. Johnson, 953 F.2d 110 (1991), superceded by statute, United States v. Johnson, 370 F.3d 382 (4th Cir., 2004) (). Under the statute, there is no requirement that the trial court conduct a hearing on the matter when the motion to suppress is filed untimely. In the present case, the prosecution filed a Notice of Intent to Introduce Evidence at Trial on 7 March 2005. Defendant's attorney at the time filed a Notice of Objection to Evidence on 21 March 2005, challenging the State's intent to introduce crime lab evidence. On 6 April 2005, defendant was assigned new counsel, who then filed the motion to suppress on 26 April 2005 , some fifty days after the notice was filed by the State. By this motion, Defendant sought suppression of "all physical evidence and any statements by the Defendant[.]" Defendant contends that the trial court should have conducted a hearing on the merits of the motion to suppress because of defense counsel's late appointment to the case within twenty days of trial.
However, Defendant is unable to support his contention with any statute or case law that provides relief from the statutory time mandate based on new appointment of counsel. Defendant cites State v. Langdon, 94 N.C. App. 354, 380 S.E.2d 388 (1989), for the proposition that the trial court should have conducted a hearing because of the late appointment of counsel and because the motion to suppress was filed before the jury was empaneled. A careful reading of Langdon, however, establishes that "[o]ur General Assembly may impose reasonable prerequisites on motions to suppress evidence, and the failure to meet those requirements constitutes a waiver of the right to challenge the admission of the evidence at trial on constitutional grounds." Id. at 356, 380 S.E.2d at 390 (citing State v. Detter, 298 N.C. 604, 616, 260 S.E.2d 567, 577 (1979)). Moreover, it is clear that the provisions of section 15A-976(b), which specifically imposes the ten-day deadline on filing a suppression motion, were not at issue in Langdon. We therefore hold that Defendant waived his right to challenge the admission of the evidence...
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