STATE OF NORTH CAROLINA
v
.
Durham County
No. 95CRS24833<
br>
SEAN GREENE
Attorney General Roy Cooper, by Special Deputy Attorney
General Gayl M. Manthei, for the State.
Lisa Miles for defendant appellant.
McCULLOUGH, Judge.
Defendant Sean Greene was tried before a jury at the 30
October 2000 Criminal Session of Durham County Superior Court after
being indicted on one count of trafficking by possession of a
Schedule I controlled substance, one count of trafficking by
transportation of a Schedule I controlled substance, one count of
possession with intent to sell or deliver a Schedule I controlled
substance, and one count of felonious possession of a Schedule I
controlled substance. Evidence for the State showed that Special
Agent William Weis was a twenty-one-year veteran of the State
Bureau of Investigation (SBI) and served as supervisor of the
narcotics task force. Agent Weis performed drug interdictions attrain stations, bus stops, and airports.
On 29 August 1995, Agent Weis received information that a man
named Sean Greene was transporting drugs on an Amtrak train
travelling from New York City to Durham, North Carolina. Upon
inquiry at the Amtrak ticket office, Agent Weis confirmed that an
individual named Sean Greene was on the Amtrak manifest printout.
The printout revealed that Sean Greene bought a one-way cash ticket
from New York City to Durham approximately fourteen minutes before
the Amtrak train departed, did not check any baggage, and did not
leave a call-back number on his reservation information. Based on
these facts and his experience, Agent Weis believed Greene fit the
profile of a drug courier. Agent Weis ran a background check on
Sean Greene. The search revealed no prior criminal history in the
State of North Carolina.
Agent Weis, accompanied by Officer Billy Gregory of the Durham
Police Department, was at the Amtrak Station when defendant's train
arrived. Both officers were dressed in plain clothes and did not
display any weapons. The officers approached defendant, identified
themselves as law enforcement officers, and asked to speak to
defendant. Defendant agreed. At the officers' request, defendant
produced his Amtrak ticket stub and his driver's license, both of
which identified him as Sean Greene. After returning the items,
the officers asked defendant if they could look into his bags and
pat him down. Defendant “readily agreed” to a search of his bags
and to a pat-down search of his person.
The officers directed defendant to the shelter area of theAmtrak platform; defendant picked up his bags and followed the
officers without incident. Neither bag contained contraband.
Agent Weis then performed a pat-down search of defendant. Agent
Weis found no contraband on defendant's body, but noticed that
defendant was wearing heavy work boots that could contain
contraband. Upon touching the boot, Agent Weis felt a hard object
inside, which he suspected was either a weapon or contraband. He
immediately stopped the search and asked defendant if he could look
inside his boot. Defendant agreed to a search of his work boots
and took his right boot off himself; the officers discovered "a
small, cylindrical tinfoil wrap" therein. The officers immediately
told defendant what they found, handcuffed him, and placed him
under arrest. Upon examination of the other boot, the officers
discovered three more tinfoil packages. The officers sent the
contraband to the SBI lab, where forensic chemist Wendy Cook
determined that the substance was heroin.
Defendant was indicted on 2 October 1995 on one count of
trafficking by possession of a Schedule I controlled substance, one
count of trafficking by transportation of a Schedule I controlled
substance, one count of possession with intent to sell or deliver
a Schedule I controlled substance, and one count of felonious
possession of a Schedule I controlled substance. The case was
dismissed with leave by the State on 17 December 1996, and was
reinstated for trial on 23 December 1999. The case was heard by a
jury at the 30 October 2000 Criminal Session of Durham County
Superior Court. The jury found defendant guilty of trafficking inheroin by possession, trafficking in heroin by transportation, and
possession of heroin. The trial court arrested judgment on the
possession of heroin conviction, and the remaining counts were
consolidated for sentencing. Defendant was sentenced to 225-279
months' imprisonment and was ordered to pay a $1,000,000.00 fine.
Judgment was entered, and defendant gave notice of appeal of the
judgment in open court. On 2 November 2000, the trial court
appointed the Appellate Defender to perfect the appeal.
Thereafter, on 12 December 2000, the trial court entered an order
relieving the Appellate Defender of responsibility for the appeal
and appointed Ms. Lisa Miles to perfect defendant's appeal.
On 17 November 2000, defendant filed a pro se motion for
appropriate relief (MAR). In his motion, defendant recounted
pertinent aspects of his case. He stated that he was originally
represented by Assistant Public Defender Phyllis Tranchese. On 17
March 2000, Ms. Tranchese filed a motion to suppress physical
evidence (the heroin) on the ground that the evidence was seized in
violation of defendant's federal and state constitutional rights.
Ms. Tranchese included an affidavit in support of the motion.
Thereafter, Attorney Robert Harris took over defendant's case and
made appearances on his behalf. On 20 September 2000, Mr. Harris
filed his own motion to suppress the physical evidence against
defendant. Like Ms. Tranchese's motion, this motion alleged that
defendant's constitutional rights were violated. By order dated 7
December 2000, the trial court denied defendant's MAR without
conducting a hearing. Defendant appeals from both the judgmententered 31 October 2000, and from the trial court's order dated 7
December 2000.
Defendant's sole assignment of error is that the trial court
erred in summarily denying his pro se MAR without conducting an
evidentiary hearing. More specifically, defendant argues the
evidence taken from him during the pat-down search was obtained in
violation of the Fourth Amendment of the United States
Constitution. He also argues that he received ineffective
assistance of counsel, because Ms. Tranchese did not timely file
defendant's motion to suppress. For the reasons set forth herein,
we disagree with defendant's arguments, affirm the denial of
defendant's MAR, and discern no error in the trial.
Defendant's MAR questions the manner in which his attorneys
tried to suppress the physical evidence prior to his trial.
Ultimately, the physical evidence was introduced at trial, entered
into evidence, and defendant was convicted of multiple drug
charges. Defendant asserts that the evidence was initially
obtained in violation of the Fourth Amendment to the United States
Constitution. The Fourth Amendment states:
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no warrants shall
issue but upon probable cause, supported by
oath or affirmation and particularly
describing the place to be searched and the
persons or things to be seized.
U.S. Const. Amend. IV (1791). The Fourth Amendment is applicable
to the states through the Due Process Clause of the FourteenthAmendment. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69
(1994); see also N.C. Const. Art. I, § 20.
N.C. Gen. Stat. § 15A-976(b) (1999) states:
(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.
While it is true that a defendant may file an MAR, we agree
with the State that defendant has waived appellate review of the
dismissal of his pretrial motion to suppress because he did not
object to the evidence at trial. In State v. Grooms, 353 N.C. 50,
66, 540 S.E.2d 713, 723 (2000), our Supreme Court stated:
We have also held that a pretrial motion to
suppress, a type of motion in limine, is not
sufficient to preserve for appeal the issue of
admissibility of evidence. See State v.
Golphin, 352 N.C. 364, 405, 533 S.E.2d 168,
198 (2000). Thus, defendant's pretrial motion
to suppress and motion in limine are not
sufficient to preserve for appeal the question
of the admissibility of the State's DNA
evidence; and defendant waived appellate
review of this issue by failing to object
during trial to the admission of the DNA
evidence. Additionally, while defendant's
assignment of error includes plain error as an
alternative, he does not specifically argue in
his brief that there is plain error in the
instant case. Accordingly, defendant's
argument is not properly before this Court.
See N.C.R. App. P. 10(c)(4); Golphin, 352 N.C.
at 405, 533 S.E.2d at 198-99; State v. McNeil,
350 N.C. 657, 681, 518 S.E.2d 486, 501 (1999),
cert. denied, [529] U.S. [1024], 146 L. Ed. 2d
321 (2000).
Therefore, in the present case, our review is limited todefendant's federal constitutional claim and his claim of
ineffective assistance of counsel.
We note that the trial court was not required to consider
defendant's pro se MAR at all, because a defendant can choose "to
appear in propria persona or, in the alternative, by counsel.
There is no right to appear both in propria persona and by
counsel." State v. Parton, 303 N.C. 55, 61, 277 S.E.2d 410, 415
(1981), disavowed on other grounds by State v. Freeman, 314 N.C.
432, 333 S.E.2d 743 (1985). The record indicates that defendant
was represented by counsel for purposes of his appeal; therefore,
there was no requirement that defendant's pro se MAR be considered
by the trial court.
However, the trial court did consider defendant's MAR, and
entered the following order for summary dismissal on motion for
appropriate relief:
THIS MATTER was heard upon a Motion of
Appropriate Relief filed 17th day of November
[2000], by the above-named defendant, Sean
Green [sic]. The Court, having considered the
allegations contained in the motion and the
case files, finds that the motion sets forth
no probable grounds for the relief requested,
either in law or in fact.
THE COURT concludes that there are no
probable grounds for relief; and,
IT IS THEREFORE ORDERED that the
motion is denied; and, the defendant's failure
to assert any other grounds in his motion
shall be subject to being treated in the
future as a BAR to any other claims,
assertions, petitions, or motions that he
might hereafter file in this case, pursuant to
N.C.G.S. 15A-1419[.]
N.C. Gen. Stat. § 15A-1420 (1999) sets forth the guidelines
and procedure for a motion for appropriate relief. According to
N.C. Gen. Stat. § 15A-1420(c)(1),
Any party is entitled to a hearing on
questions of law or fact arising from the
motion and any supporting or opposing
information presented unless the court
determines that the motion is without merit.
The court must determine, on the basis of
these materials and the requirements of this
subsection, whether an evidentiary hearing is
required to resolve questions of fact. Upon
the motion of either party, the judge may
direct the attorneys for the parties to appear
before him for a conference on any prehearing
matter in the case.
(Emphasis added.) Our cases have reiterated that no hearing is
required if the trial court determines that the MAR is without
merit. State v. McHone, 348 N.C. 254, 257-58, 499 S.E.2d 761, 762-
63 (1998).
In the present case, defendant's pro se MAR contained numerous
allegations of unfairness and prejudice, concluding with the
following prayer for relief:
WHEREFORE Defendant Sean Greene
respectfully prays this Court to grant the
following relief.
1. That an evidentiary hearing be
held before the trial Judge.
2. That defendant's conviction be
vacated.
3. That a new trial be ordered;
and
4. That other and further relief
as this court deems just and
proper be granted.
The trial court considered the facts of defendant's case, applied
the law, and determined that “the motion sets forth no probable
grounds for the relief requested, either in law or in fact.” With
this statement, the trial court determined that defendant's MAR was
without merit; therefore, a hearing was not required. See N.C.
Gen. Stat. § 15A-1420(c)(1). We are mindful that
[w]hen reviewing a trial court's order on
a motion for appropriate relief, the findings
of fact made by the court are binding if they
are supported by competent evidence and may be
disturbed only upon a showing of a manifest
abuse of discretion. State v. Pait, 81 N.C.
App. 286, 288-89, 343 S.E.2d 573, 575 (1986).
However, the trial court's conclusions of law
are fully reviewable on appeal. State v.
Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585
(1994).
State v. Johnson, 126 N.C. App. 271, 273, 485 S.E.2d 315, 316
(1997).
En route to making its determination, the trial court also
considered defendant's assertion that he received ineffective
assistance of counsel from Ms. Tranchese, the Assistant Public
Defender who first dealt with defendant's case. Defendant
maintains that his pro se MAR set forth a meritorious claim, since
Ms. Tranchese did not file a motion to suppress until 17 March
2000, five years after she knew the State would introduce the
seized evidence. Defendant also argues his pro se MAR was
sufficient to put the trial court on notice of the specifics of his
complaint.
"A strong presumption exists that a counsel's conduct falls
within the range of reasonable professional assistance." State v.Frazier, 142 N.C. App. 361, 367, 542 S.E.2d 682, 687 (2001). Here,
the State served notice of its intent to use the physical evidence
(the heroin) on 15 November 1995. Defendant did not appear at his
scheduled 13 November 1995 court date, and was unavailable during
the time Ms. Tranchese would have filed a motion to suppress
evidence. Defendant did not return to North Carolina until he was
apprehended in New York in November 1999.
Based upon these facts and our examination of the record, we
agree with the State that Ms. Tranchese's failure to timely file a
motion was likely reasonable, given the fact that defendant failed
to appear for a scheduled court date and had apparently left the
jurisdiction before the date the motion was to be filed. We do not
believe defendant can successfully assert a claim of ineffective
assistance of counsel when his attorney's action was thwarted by
his own misconduct. Assuming defendant's MAR also alleges that his
trial attorney (Mr. Harris) was ineffective, we note that a failure
to object to admissible evidence is not a ground upon which
defendant can assert a successful allegation of ineffective
assistance of counsel. “A counsel's failure to object to evidence
which is in fact admissible does not amount to deficient
representation.” Frazier, 142 N.C. App. at 368, 542 S.E.2d at 687.
See also State v. Lee, 348 N.C. 474, 492-93, 501 S.E.2d 334, 346
(1998).
Finally, even if the trial court's summary denial of
defendant's MAR was erroneous, defendant here cannot show that a
different result would have been reached had his MAR been granted. See N.C. Gen. Stat. § 15A-1443(a) (1999) ; and State v. Garner, 136
N.C. App. 1, 7, 523 S.E.2d 689, 694 (1999).
It is apparent from the undisputed facts set forth earlier
that the encounter between defendant and the officers resulted in
a consensual search of defendant's bags and of his person. The
trial court need not make findings of fact when there is not a
material conflict in the evidence. See State v. Lovin, 339 N.C.
695, 706, 454 S.E.2d 229, 235 (1995); and State v. Nowell, 144 N.C.
App. 636, 643, 550 S.E.2d 807, 812 (2001).
After careful consideration of the record and the arguments
presented by the parties, we conclude that the trial court did not
err in denying defendant's pro se MAR without conducting a hearing.
In the trial court's judgment entered 31 October 2000 and in the
trial court's order dated 7 December 2000, we find
No error.
Chief Judge EAGLES and Judge CAMPBELL concur.
Report per Rule 30(e).
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