STATE v. ROSS (2019)

Dante Lorenzo Ross (“Defendant”) appeals from judgment entered after a jury found him guilty of assault with a deadly weapon inflicting serious injury and driving while license revoked for an impaired driving revocation. Defendant contends the trial court: (1) erred by admitting Defendant's 14 November 2016 interview with police into evidence and playing it for the jury; and (2) committed plain error by failing to instruct the jury on the use of notes in its final charge. We hold that Defendant waived any right to appellate review on the first issue. We further hold the trial court did not commit plain error in its instructions to the jury.

I. Factual & Procedural History

Defendant and his girlfriend, Shequoina Henry (“Ms. Henry”), entered Baptist Hospital's Emergency Department in Winston-Salem at approximately 11:30 a.m. on 12 November 2016. Ms. Henry presented with low blood pressure, a broken jaw, misaligned teeth, a collapsed lung on her right side, “skin coming away from the top of her right foot,” exposed tendons, and “very severe liver laceration and blood in her abdomen from that liver laceration.” Defendant told an off-duty police officer that Ms. Henry had been hit by a car when she took the trash out that morning. Defendant told another officer that he was inside his house when he heard Ms. Henry scream and, when he went outside, he discovered Ms. Henry injured in the driveway.

Officers from the Winston-Salem Police Department reported to 2710 Patrick Avenue – the residence shared by Defendant and Ms. Henry and the alleged scene of the crime. The officers investigated the area around the residence and noticed there were not “any skid marks or debris caused from a collision between two vehicles or a vehicle and a person.” The officers also observed tire tracks in the front yard within a fenced-in area. The tire tracks in the northern part of the yard formed “a loop around in the yard[,]” and ended “just short of [the] fence.” The tire marks were consistent with a person slamming on the brakes.

Two officers from the Winston-Salem Police Department went to the hospital and spoke with Defendant. When one officer asked Defendant to tell his side of the story, Defendant became “very upset and angry” and said: “I've already told you what f***** happened.” Defendant explained that, when he attempted to leave the house, Ms. Henry jumped on the hood of the car and told Defendant she had just been hit by a different car in the road, and asked Defendant to drive her to the hospital. When questioned regarding the discrepancy between his two accounts of the incident, Defendant “became upset and walked out of the room.” Before Defendant left the room, he said, “if there's anything else you gotta ask, ask my lawyer.”

Defendant was arrested and transported to the Public Safety Office for questioning on 14 November 2016. Corporal J.B. Gerald (“Corporal Gerald”) and Detective Michael Ognosky (“Detective Ognosky”) of the Winston-Salem Police Department questioned Defendant in an interview room. The interview (the “14 November interview”) was recorded. Prior to being read his Miranda rights, Defendant made statements indicating a desire to have an attorney present. However, when Defendant was asked by officers to clarify that he was in fact requesting an attorney, Defendant's responses were noncommittal and he stated, for instance, “[i]f he coming, [sic] I'm going to talk to you. If [he] don't come, I'm still going to talk to you. I just want to make sure he's coming.” Defendant ultimately waived his Miranda rights and denied any involvement in Ms. Henry's injuries, stating he was inside his house when he heard Ms. Henry scream.

Defendant's attorney arrived at the Public Safety Office, where he met privately with Defendant. The attorney then approached the officers in the hall and said Defendant was ready to give a “truthful statement now.” In the presence of his attorney, Defendant told the officers that Ms. Henry had injured herself when she jumped on the hood of the car Defendant was driving.

Defendant was indicted for felonious assault with a deadly weapon inflicting serious injury and driving with license revoked for an impaired driving revocation. Defendant was subsequently indicted for attaining habitual felon status. Defendant gave notice to the State of his intention to offer the affirmative defense of accident and, on 18 August 2017, filed a motion in limine, seeking to “exclude any out of court statement offered by the State which violates [D]efendant's rights under the [C]onfrontation [C]lause of the U.S. Constitution.”

The hearing began 21 August 2017, and the trial court heard pretrial motions that morning before jury selection. Defendant's attorney argued:

I would object to any out-of-court-statement from the victim, or any witness, but particularly the victim in that it's offered against [D]efendant and it's testimonial in nature and therefore it would be a violation of his rights under the confrontation clause of the constitution, and more particularly under the Crawford, United States Supreme court case.

The trial court announced it would reserve ruling and would address the issues as they arose during trial.

During the direct questioning of Corporal Gerald regarding the 14 November interview, the following exchange ensued:

THE STATE: What, if any, questions did you ask to sort of follow up on – had you read him his Miranda rights yet?

CORPORAL GERALD: At this point we had not had the opportunity. At this point we had not asked him any questions, we simply walked in the room and he said, “I would like to speak with my attorney,” and even identified his attorney at the time.

THE STATE: And who was his attorney?

CORPORAL GERALD: He gave us the name Jones Byrd.

THE STATE: And in order to clarify his request, what question did you ask?

CORPORAL GERALD: As he asked – or as he asked us to contact his attorney I asked a clarifying question just to try and understand what exactly he was wanting. So I asked him, I said, “are you going to talk to us even if we can't get in contact with your attorney?” But I did inform him that I would try to call his attorney.

THE STATE: What was his answer to your clarifying question?

CORPORAL GERALD: He told us that –

DEFENDANT'S ATTORNEY: Objection.

The specific basis for the objection was heard during a bench conference that was not transcribed, but the trial court summarized the conference: “[a]n objection was made by [Defendant's attorney] in regard to the line of questioning with regard to discussions about an attorney.” Defendant's attorney argued that, from the first time Defendant asked to call his attorney, “questioning should [have] stop[ped] and go[ne] no further until [Defendant] had a chance to at least contact his attorney or the attorney be present.” Defendant's attorney argued specifically: “I would ask anything really after the Miranda waiver was signed be excluded up until the point [Defendant] is interrogated with [his attorney] present.” After reviewing the recording of the 14 November interview outside the presence of the jury, the trial court announced, “statements as to counsel are equivocal and a waiver did occur. So overrule the objection noting it for the record.” The recording of the 14 November interview was admitted into evidence and published to the jury.

Ms. Henry testified and denied that Defendant intentionally struck her with the car. The jury found Defendant guilty of assault with a deadly weapon inflicting serious injury and driving while license revoked for an impaired driving revocation. After the verdict was announced, Defendant admitted his status as an habitual felon. Defendant was sentenced to 96-128 months in prison. Defendant appeals.

II. Analysis

A. Challenge to Admission of 14 November Interview

Defendant argues the trial court erred in admitting the 14 November interview into evidence because Defendant was denied his constitutional right to have counsel present when he made his statement to the officers. We dismiss this argument because Defendant has waived his right to appellate review.

Our Supreme Court held:

N.C.G.S. § 15A-974(a)(1) states that, upon timely motion, evidence must be suppressed if ․ its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina. And N.C.G.S. § 15A-979(d) specifies that a motion to suppress evidence made pursuant to this Article is the exclusive method of challenging the admissibility of evidence on constitutional grounds. A defendant generally may move to suppress evidence only prior to trial, subject to a few, narrow exceptions that permit a defendant to move during trial[.]

State v. Miller, ––– N.C. ––––, ––––, 814 S.E.2d 81, 83 (2018) (internal quotation marks, citations, and brackets omitted) (emphasis in original). Defendant challenges the admissibility of the 14 November interview on the ground that he was “denied his constitutional right to have counsel present when he made his statement to the police.” Therefore, a motion to suppress was the exclusive method for Defendant to contest the admissibility of the 14 November interview. See Miller, ––– N.C. at ––––, 814 S.E.2d at 83.

N.C. Gen. Stat. § 15A-977 states that a motion to suppress made pre-trial “must state the grounds upon which it is made” and “must be accompanied by an affidavit containing facts supporting the motion.” N.C.G.S. § 15-977(a) (2017). The burden is on the defendant to establish that a motion to suppress is both timely and in proper form. State v. Satterfield, 300 N.C. 621, 624-25, 268 S.E.2d 510, 513-14 (1980). “The judge may summarily deny the motion to suppress evidence if: (1) The motion does not allege a legal basis for the motion; or (2) The affidavit does not as a matter of law support the ground alleged.” N.C.G.S. § 15A-977(c) (1)-(2). A timely motion to suppress must be filed before trial unless the defendant:

demonstrates that he did not have a reasonable opportunity to make the motion before trial; or that the State did not give him sufficient advance notice (twenty working days) of its intention to use certain types of evidence; or that additional facts have been discovered after a pretrial determination and denial of the motion which could not have been discovered with reasonable diligence before determination of the motion.

Satterfield, 300 N.C. at 625, 268 S.E.2d at 514. If a defendant falls within an exception that excuses him from having to file a pre-trial written motion and affidavit, the motion to suppress must still be proper in form. Id. at 625, 268 S.E.2d at 514 (“[A] motion to suppress made at trial, whether oral or written, should state the legal ground upon which it is made and should be accompanied by an affidavit containing facts supporting the motion. ․ If the motion fails to allege a legal or factual basis for suppressing the evidence, it may be summarily dismissed by the trial judge.”).

In the present case, Defendant did not file a motion to suppress the 14 November interview prior to trial. Defendant's motion in limine, which was filed prior to trial and argued at a pre-trial hearing, sought to exclude evidence “offered against [D]efendant” based on an alleged violation of Defendant's rights under the Confrontation Clause of the United States Constitution. The motion in limine was not a motion to suppress the 14 November interview on the ground it violated Defendant's constitutional rights under Miranda. Therefore, the only permissible way Defendant could have moved to suppress the 14 November interview at trial was by demonstrating he fell within an exception that excused his failure to file the motion and affidavit prior to trial. “When no exception to making the motion to suppress before trial applies, failure to make the pretrial motion to suppress waives any right to contest the admissibility of the evidence at trial on constitutional grounds.” State v. Detter, 298 N.C. 604, 616, 260 S.E.2d 567, 577 (1979). Defendant did not assert he fell within an exception. As a result, Defendant was precluded from moving to suppress the 14 November interview at trial. State v. Loftis, ––– N.C. App. ––––, ––––, ––– S.E.2d ––––, ––––, slip op. at *8 (N.C. Ct. App. Mar. 26, 2019) (“Here, [the defendant] did not move to suppress before trial and does not assert on appeal that any exception applied to permit her to move to suppress during trial. ․ Accordingly, the trial court properly overruled [the defendant's] objection as procedurally barred.”).

Moreover, it is of no consequence the State failed to object to the form of Defendant's motion to suppress at trial. The Supreme Court of North Carolina explained:

We have held that defendants by failing to comply with statutory requirements set forth in N.C.G.S. 15A–977 waive their rights to contest on appeal the admission of evidence on constitutional or statutory grounds. The State's failure to object to the form of the motion affects neither that waiver nor the authority statutorily vested in the trial court to deny summarily the motion to suppress when the defendant fails to comply with the procedural requirements of Article 53. The trial court could properly have denied the defendant's motion to suppress based on the defendant's procedural failures alone, and we therefore reverse the decision of the Court of Appeals.

State v. Holloway, 311 N.C. 573, 578, 319 S.E.2d 261, 264 (1984) (internal citations omitted).

We hold Defendant failed in his burden of demonstrating that he moved to suppress the 14 November interview both timely and in proper form. Therefore, Defendant waived any right to appellate review on this issue.

B. Jury Instructions

Defendant argues the trial court committed plain error by failing to instruct the jury on the use of their notes in its final charge. We disagree.

After the jury was selected and impaneled, the trial court instructed the jury in accordance with the pattern jury instructions on the making of notes, N.C.P.I.—Crim. 100.30. The trial court instructed the jury:

All right. Ladies and gentlemen, in my discretion in this matter, I am going to allow you to take notes but I want to give you some important instructions and precautions about that. When you begin your deliberations you may use your notes to help refresh your memory as to what was said in court. I'm going to caution you however not to give your notes or the notes of any other juror undo significance. While taking notes a juror may fail to hear important portions of the testimony. Any notes taken by you are not to be considered as evidence in the case. Your notes are not an official transcript of the trial. For that reason you must remember that in your jury deliberations notes are not entitled to any greater weight than the individual recollections of other jurors.

If you take notes you may disclose them only to your fellow jurors during your deliberations. You are not to show them to anyone else. And while I permit you to take notes in the matter, I instruct you to listen intently at all times to testimony. Now, ladies and gentlemen, in just a moment I'm going to ask our bailiff to hand out a notepad and a pen to those of you who wish to take notes. While I'm allowing you to you're certainly not required to do so, it's only if you would like to take notes.

I want you to – if you choose to take those notes, when we go on recesses or at the conclusion of the day, please leave your notepads on your chair. Don't take those back in the jury room with you until I tell you to do so. Be assured your notes will be secured during our recesses and overnight such that no one will look at them. Also for those of you choosing to take notes, please make any notes in the notepad and don't mark on any exhibits that may be passed through the jury box.

With those important instructions having been discussed, at this time if any of you would like to take notes, again you're not required to do so, if you'd just indicate by raising your hand and our bailiff will pass out a notepad and a pen to you.

Defendant's attorney did not object at trial to the jury instructions, so this Court's review is limited to the plain error standard. State v. Voltz, ––– N.C. App. ––––, ––––, 804 S.E.2d 760, 767 (2017). “In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.” State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997). “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” State v. Lawrence, 365 N.C. 506, 517, 723 S.E.2d 326, 333-34 (2012) (quotation marks, citations, and brackets omitted).

In the present case, the trial court instructed the jury on the use of notes at the start of the trial. Defendant argues that “this instruction is to be given to juries at the close of a case, immediately prior to a jury beginning deliberations.” However, no such requirement exists. The jury heard the trial court's instructions regarding notes at the start of the trial and there is no evidence that, in the course of the four-day trial, the instruction was forgotten. Therefore, Defendant has failed to demonstrate the trial court committed error, much less plain error, in its jury instructions.

III. Conclusion

For the reasons stated above, this Court holds that Defendant waived appellate review regarding the admissibility of the 14 November interview. We also hold the trial court did not err in instructing the jury on the use of notes in accord with the pattern jury instructions.

NO ERROR.

Report per Rule 30(e).

McGEE, Chief Judge.

Judges TYSON and BERGER concur.