Appeal by defendant from judgments entered 8 December 2000 by
Judge W. Douglas Albright in Forsyth County Superior Court. Heard
in the Court of Appeals 21 February 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Anita LeVeaux, for the State.
J. Clark Fischer for defendant-appellant.
MARTIN, Judge.
Defendant was convicted by a jury of two counts of felonious
breaking or entering, six counts of felonious larceny after
breaking or entering, felonious possession of stolen goods,
financial transaction card theft, and being an habitual felon. He
appeals from the judgments entered upon the verdicts.
Briefly summarized, the evidence at trial tended to show that
several witnesses observed defendant in offices located in the BB&T
Financial Center Building in Winston-Salem on 16 March 2000.
Shortly thereafter, wallets, credit cards, and cash were discovered
to be missing. Defendant was confronted by security personnel and,
after showing his identification, fled from the building. Police
Officer George Reavis testified that he went to the BB&T Buildingand, after receiving information from various persons who had
observed defendant, radioed other officers to be on the lookout for
a suspect and provided some general information, including a
description of the automobile the suspect was driving. Police
Officer R.D. Fenimore testified that he received the radio
broadcast and subsequently noticed a vehicle matching the
description in the broadcast driving towards him in the wrong
direction on a one-way street. The driver of the vehicle turned
onto Poplar Street, and Fenimore followed. Fenimore testified that
the vehicle was traveling at a speed of 35 to 45 miles per hour
down Poplar Street, and made an illegal left turn from Poplar onto
Holly Street. Fenimore activated his blue light and siren and
pulled the vehicle over for making the illegal left turn onto Holly
Street. Fenimore asked defendant to step out of the car and
conducted a pat-down search for weapons, where he discovered in
defendant's pockets several denominations of currency and the
credit card of Gerald Malmo, who worked in the BB&T Building. The
officer placed defendant under arrest for making an illegal left
turn and held him at the scene, awaiting the arrival of other
officers with an eye-witness to the alleged larcenies. Angela
Bailey arrived shortly thereafter with Officer Reavis and
identified defendant as the man she had seen in the BB&T Building.
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Prior to trial defendant filed, pursuant to Article 53 of
Chapter 15A of the General Statutes, an unverified motion to
suppress the evidence seized by Officer Fenimore as a result of thesearch incident to defendant's arrest following the traffic stop.
He did not, however, file an affidavit in support of the motion to
suppress as required by G.S. § 15A-977. After hearing the motion,
the trial court found that defendant's motion was not proper in
that it “failed to include an affidavit containing facts to support
[the motion].” The trial court concluded that by his failure to
comply with G.S. § 15A-977, the defendant had “waived the right to
seek suppression of evidence seized pursuant to any search in
question.” The trial court summarily denied and dismissed the
motion to suppress. Defendant's subsequent objection to the
evidence at trial was overruled. Defendant assigns error.
In his brief, defendant argues that the evidence should have
been suppressed because it was seized during an illegal arrest.
Citing
Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601
(2000), defendant argues Officer Fenimore had no authority to
arrest him for a non-criminal traffic infraction. As properly
concluded by the trial court, however, by his failure to comply
with the provisions of G.S. § 15A-977 he has waived his right to
seek suppression of the evidence.
Motions to suppress evidence are governed by Article 53 of
Chapter 15A of the General Statutes. G.S. § 15A-974 requires the
exclusion of evidence obtained in violation of the State or Federal
constitutions, or in violation of statutory law, upon a timely
motion. G.S. § 15A-975(a) and § 15A-976 require, subject to
exceptions not applicable here, that motions to suppress evidence
in the superior court be filed prior to trial. G.S. § 15A-977(a)requires that the motion “be accompanied by an affidavit containing
facts supporting the motion.” Subsection (c) of the same statute
provides for summary denial of the motion if “[t]he affidavit does
not as a matter of law support the ground alleged.” N.C. Gen.
Stat. § 15A-977(c). A defendant has the burden of showing
compliance with these procedural requirements, and a failure to
comply with the requirements of Article 53 constitutes a waiver of
the right to seek suppression of evidence on statutory or
constitutional grounds.
State v. Holloway, 311 N.C. 573, 319
S.E.2d 261 (1984);
State v. Creason, 123 N.C. App. 495, 473 S.E.2d
771 (1996),
affirmed, 346 N.C. 165, 484 S.E.2d 525 (1997). Having
failed to show his compliance with the statutory requirements for
a motion to suppress, defendant has waived his right to seek
suppression of the evidence and the trial court acted well within
its sound discretion in summarily denying and dismissing the
motion. Defendant's first assignment of error is overruled.
Defendant next contends the trial court committed plain error
by permitting the prosecutor to disclose to the court at the
sentencing hearing that the State had offered, and defendant had
rejected, an earlier plea arrangement. Because defendant did not
object to the statements by the prosecutor regarding the plea
offer, we employ a plain error standard of review. N.C.R. App. P.
10(c)(4). Plain error is “'
fundamental error, something so basic,
so prejudicial, so lacking in its elements that justice cannot have
been done,' or 'where [the error] is grave error which amounts to
a denial of a fundamental right of the accused . . . .'”
State v.Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation
omitted). In order to prevail under a plain error analysis, the
defendant must show not only the existence of error, but also the
probability of a different result had the error not occurred.
State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132 (1993),
disc.
review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). The burden is
on defendant to prove the existence of plain error.
State v.
Jordan, 333 N.C. 431, 426 S.E.2d 692 (1993).
Pursuant to G.S. § 15A-1025
[t]he fact that the defendant or his counsel
and the prosecutor engaged in plea discussions
or made a plea arrangement
may not be received
in evidence against or in favor of the
defendant in any criminal or civil action or
administrative proceedings. (emphasis added).
In the present case, defendant's rejection of the plea agreement
was disclosed to the trial court only after verdict and during the
sentencing hearing. A trial judge is presumed to disregard
incompetent evidence and consider only proper evidence in reaching
a decision.
State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976).
Moreover, after defense counsel stated that the court should not
punish defendant for requesting a trial, the trial court responded:
No, I never have ever punished somebody for
challenging the State's case or exercising
their legal right, but I do reserve the right
to punish him appropriately for his many
crimes.
Thus, even assuming, without deciding, that disclosure of the
existence of the earlier plea offer was improper, defendant has not
shown the existence of plain error inasmuch as he has not shown a
probability that a different result would have been reached had theplea offer not been disclosed. This assignment of error is
overruled.
Because defendant has presented no argument in support of his
remaining assignments of error, they are deemed abandoned. N.C.R.
App. P. 28(b)(5).
No error.
Judges HUDSON and CAMPBELL concur.
Report per Rule 30(e).
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