An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1346


Filed: 20 September 2005


         v.                        Buncombe County
                                Nos. 03 CRS 9403, 56899
THERESA ANN FABIO                    

    Appeal by defendant from judgment entered 18 December 2003 by Judge Zoro J. Guice, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 18 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Dahr J. Tanoury, for the State.

    Charlotte Gail Blake for defendant-appellant.

    STEELMAN, Judge.

    Defendant was indicted on 6 October 2003 for driving while license revoked, possession of drug paraphernalia, and possession of a Schedule II controlled substance.     The evidence at trial tended to show that on 6 June 2003, Officer Brett Maltby of the Asheville Police Department was patrolling an area known as Lee Walker Heights at approximately 3:45 a.m. Officer Maltby testified that traffic is generally at a bare minimum at that time of night. As he passed a dark-colored Nissan Pathfinder, he noticed two occupants, a white female driver and a black male passenger. Officer Maltby testified that he noticed that neither occupant made eye contact with him as he passed by, which he found to be unusual. He began following the vehicle, ran the license plate, and learned the vehicle was registered to Theresa Ann Fabio, whose license had been suspended. Officer Maltby activated his blue lights and initiated a traffic stop.
    Officer Maltby approached the vehicle and asked defendant three times for her license and registration. Officer Maltby testified defendant acted in a suspicious manner and when she reached towards the center console of her vehicle, he asked her to step out of the car. He searched her and found a Brillo pad inside her jacket pocket, an item that he said was commonly used as a filter for smoking crack cocaine. Officer Maltby took defendant into custody for driving without a license and placed her inside his patrol car. He then returned to defendant's vehicle to conduct a search. He found on the driver's seat, in plain view, a napkin, on top of which he found a rock of crack cocaine. He also found a crack pipe underneath the driver's seat, where defendant had been sitting. While searching the vehicle, Officer Maltby detected the odor of burnt crack cocaine.
    Prior to trial, defendant filed a timely motion to suppress the evidence seized during the traffic stop, pursuant to N.C. Gen. Stat. § 15A-972 . Defendant asserted that Officer Maltby did not have probable cause to stop the vehicle; therefore, the search and seizure violated her Fourth Amendment rights. The trial transcript in the present case shows defendant requested a hearing on her motion to suppress on numerous occasions. First, before any evidence was presented, defendant brought the motion to the trialcourt's attention. However, the trial court declined to hear the motion, stating that it would “be heard during the course of the presentation of the evidence, if it's heard [a]t all.”     
    Defendant again asked to be heard on the motion while Officer Maltby was being questioned on direct examination:
        [Prosecutor]: And on June the 6th, 2003, while you were patrolling the Lee Walker Heights community, did you have occasion to run across a lady by the name of Theresa Fabio?

        [Defense Counsel]: Objection, Your Honor.
        [Court]: Overruled.
        [Defense Counsel]: Your Honor, at this point, I would ask the Court to hear our Motion to Suppress.

        [Court]: Overruled.
        [Prosecutor]: Officer Maltby, tell the ladies and gentlemen of the jury how you came in contact with Ms. Fabio.

        [Defense Counsel]: Objection, Your Honor. I would renew my motion.

        [Court]: Overruled.
        [Defense Counsel]: I would like an exception noted for the record.

        [Court]: Overruled.
    A short time later, still during Officer Maltby's direct testimony, defendant again attempted to have her motion heard:
        [Prosecutor]: And when you first initiated contact with the Defendant, what happened next?

        [Officer Maltby]: She failed to strike back any type of conversation --

        [Defense Counsel]: At this point, I'm going to direct my objection to this line ofquestioning, and again, ask the Court to entertain our Motion to Suppress pursuant to the Statute.

        [Court]: Objection overruled.
        [Defense Counsel]: I would ask that I be able to proffer my evidence, Your Honor.

        [Court]: Objection overruled.
    Defendant never testified. After the jury returned its verdict and the trial court sentenced defendant without having conducted a hearing on the motion to suppress, the judge made findings of fact and conclusions of law, and denied the motion to suppress.
    Defendant was convicted of possession of a schedule II controlled substance, driving while license revoked, and possession of drug paraphernalia. The trial court sentenced defendant to six to eight months imprisonment, suspended the sentence, and placed her on supervised probation for thirty-six months. Defendant appeals.
    Defendant's sole argument on appeal is that the trial court's refusal to hear her motion to suppress deprived her of her right to due process. Defendant contends counsel properly made the motion to suppress; therefore, the trial court was required to conduct a hearing outside the presence of the jury. We agree.
    If a trial judge does not summarily determine a motion to dismiss, as is the case here, “the trial judge must conduct a hearing, make findings of fact and conclusions of law and set forth his findings and conclusions in the record.” State v. Cheek, 307 N.C. 552, 556, 299 S.E.2d 633, 636 (1983) (citing N.C. Gen. Stat.§ 15A-977(d) and (f)). Further, the hearing must be held in the absence of the jury. Id. at 556-57, 299 S.E.2d at 636; N.C. Gen. Stat. § 15A-977(e).
    Rather than conducting a hearing outside the presence of the jury, the trial court admitted all the evidence before the jury, and made findings of fact and conclusions of law following the conclusion of the trial without ever conducting a hearing or hearing defendant's testimony. By refusing to conduct a voir dire hearing on defendant's motion, despite repeated requests from defense counsel , the trial court denied defendant any chance to present evidence or testify in support of her motion . “[D]ue process requires that defendant should have been given a reasonable opportunity to be heard on [her] motion to suppress at a meaningful time and in a meaningful manner.” State v. Battle, 136 N.C. App. 781, 786-87, 525 S.E.2d 850, 854 (2000) (citations and internal quotation marks omitted). This means the trial court must provide the defendant with “an opportunity to offer evidence and present [her] version of the search and seizure or to contradict, amplify, or explain the testimony offered by the State on voir dire.” Id. at 786, 525 S.E.2d at 854. In addition to violating defendant's due process rights, the trial court denied defendant her statutory right to a hearing under N.C. Gen. Stat. § 15A-977(d), outside the presence of the jury as required by N.C. Gen. Stat. § 15A-977(e).
    As a result of the trial court's failure to conduct a hearing on defendant's motion to suppress in accordance with N.C. Gen. Stat. § 15A-977, we are required to reverse and remand this matterfor a new trial. Battle, 136 N.C. App. at 787, 525 S.E.2d at 854 ; N.C. Gen. Stat. § 15A-1447(a).
    Judges HUDSON and JACKSON concur.
    Report per Rule 30(e).

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