STATE OF NORTH CAROLINA
v. Forsyth County
No. 04 CRS 59223
JOHNNY RAY FARRIS 05 CRS 1447
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn L. Strange, for the State.
Nancy R. Gaines, for defendant-appellant.
ELMORE, Judge.
Defendant was found guilty of felony breaking and entering,
felonious larceny, and habitual felon status. The offenses were
consolidated and defendant was sentenced to a minimum term of 133
months and a maximum term of 169 months.
The State's evidence tends to show that on 28 April 2004,
Officer September Webster Tuttle was dispatched to investigate a
suspected break-in at the residence of Ms. Faye Pinkney. Officer
Tuttle observed Ms. Pinkney's home to be in disarray. After
speaking with Ms. Pinkney, Officer Tuttle began to look for a
person by the name of “J-5” who lived with Mr. Walter Wells in a
house five or six houses down the street. Mr. Wells confirmed that
“J-5,” whom he identified as defendant, resided with him. Herelated that defendant mowed Ms. Pinkney's grass and cleaned her
home. Defendant also had a key to her residence.
On 21 May 2004, Detective C.S. Sluder of the Winston-Salem
Police Department came to Mr. Wells' residence. Detective Sluder
awakened defendant and asked him to accompany him to the police
station for questioning. Defendant agreed to go with him. At the
station defendant gave an inculpatory statement in which he
indicated that he had a key to Ms. Pinkney's residence and that he
helped another gentleman remove a large screen television set from
her residence while Ms. Pinkney was away for the weekend. He
helped the other man push the television set to the other man's
residence. He also gave a written statement in which he apologized
to Ms. Pinkney for helping to take the television out of her house.
As Detective Sluder drove defendant back to Mr. Wells'
residence, defendant showed the officer the residence where he
transported the television set. On 17 June 2004, Detective Sluder
went to the home that defendant identified and asked a resident,
Mr. Tommie Richardson, whether he had a large screen television
set. Mr. Richardson showed the detective a large screen television
set he said he bought from “J-5”
for the sum of $125.00. The
serial number on the television set matched that of the set taken
from Ms. Pinkney's home.
Mr. Tommie Richardson, Jr. testified for the State that
defendant came to his residence and offered to sell a large screen
television set for $300.00. Defendant accepted his offer of
$125.00 for the television.
Defendant did not present any evidence.
By his only assignment of error brought forward, defendant
contends that the court erred by denying his motion to suppress an
inculpatory statement on the ground that it was the product of a
custodial interrogation conducted without defendant having waived
his rights. For the following reasons, we dismiss this assignment
of error.
The exclusive method for challenging evidence on the ground
that its exclusion is constitutionally required is published in
Article 53 of Chapter 15A of the General Statutes. State v.
Jeffries, 57 N.C. App. 416, 424, 291 S.E.2d 859, 864, cert. denied
and appeal dismissed, 306 N.C. 561, 294 S.E.2d 374 (1982)
.
Specifically, N.C. Gen. Stat. § 15A-975 provides in pertinent part:
(a) In superior court, the defendant may move to suppress
evidence only prior to trial unless the defendant did not
have reasonable opportunity to make the motion before
trial or unless a motion to suppress is allowed during
trial under subsection (b) or (c).
(b) A motion to suppress may be made for the first time
during trial when the State has failed to notify the
defendant's counsel or, if he has none, the defendant,
sooner than 20 working days before trial, of its
intention to use the evidence, and the evidence is:
(1) Evidence of a statement made by a
defendant;
(2) Evidence obtained by virtue of a search
without a search warrant; or
(3) Evidence obtained as a result of search
with a search warrant when the defendant was
not present at the time of the execution of
the search warrant.
(c) If, after a pretrial determination and denial of the
motion, the judge is satisfied, upon a showing by the
defendant, that additional pertinent facts have beendiscovered by the defendant which he could not have
discovered with reasonable diligence before the
determination of the motion, he may permit the defendant
to renew the motion before the trial or, if not possible
because of the time of discovery of alleged new facts,
during trial.
N.C. Gen. Stat. § 15A-975 (2005). Failure to comply with these
requirements or to qualify under one of the exceptions to filing of
a pretrial motion will result in the waiver of the right to
challenge the admissibility of the evidence on appeal.
State v.
Maccia, 311 N.C. 222, 228, 316 S.E.2d 241, 244 (1984)
. The burden
of showing compliance with the statutory procedural requirements is
upon the defendant. State v. Jones, 157 N.C. App. 110, 113, 577
S.E.2d 676, 679 (2003).
The record shows that at the beginning of trial the
prosecution stated for the record that approximately two months
prior to trial it had provided defense counsel with statements made
by defendant. Counsel for defendant acknowledged in court that he
received these materials. During Detective Sluder's testimony
defendant moved to suppress the statement defendant wrote in which
he apologized to Ms. Pinkney. The prosecutor opposed the motion on
the ground that defendant failed to move to suppress the evidence
prior to trial. In response, defense counsel asserted that he was
not aware of any evidence that defendant was taken to the police
station in handcuffs until he heard Mr. Wells's testimony at trial.
Although N.C. Gen. Stat. § 15A-975(c) does allow the making of
a motion to suppress during trial, it also expressly mandates that
a pretrial determination of a motion to suppress must have been
made. This never occurred in the case at bar. Moreover, the lawis well settled that an objection to the admission of evidence is
waived if evidence of similar import is admitted at another point
of trial without objection. State v. Wilson, 313 N.C. 516, 532,
330 S.E.2d 450, 461 (1985). Prior to the objection at bar and
after Mr. Wells had testified, Detective Sluder testified
extensively without objection regarding inculpatory statements made
by defendant.
For these reasons, we hold that defendant failed to preserve
this assignment of error for review.
No error.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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